Carl Schneider

• J.D.
• Professor at University of Michigan

Suicide involves a complex set of behaviors and emotions that lead up to actions that may be based on planning and forethought or the result of impulse. While there are a host of antecedent circumstances the presence of a mood disorder, primarily depression, is the most common factor in suicide. While management of depression is recognized as impor...

An argument that the system of boards that license human-subject research is so fundamentally misconceived that it inevitably does more harm than good. Medical and social progress depend on research with human subjects. When that research is done in institutions getting federal money, it is regulated (often minutely) by federally required and super...

What would happen if cost-benefit analysis (CBA) were applied to disclosure regulations? Mandated disclosure has largely escaped rigorous CBA because it looks so plausible: disclosure seems rich in benefits and low in cost. This article makes two arguments. First, it previews our thesis in More Than You Wanted to Know that disclosure laws do not de...

This chapter argues that mandated disclosure not only can be costly but also can inflict unintended and unnoticed harms. Mandates impose various direct costs on both disclosers and disclosees. For example, disclosers expend resources in collecting elusive information. Some disclosers must mail disclosures to thousands of disclosees annually or even...

This chapter considers another reason why simplification cannot save mandated disclosure: regulatory method depends on disclosers, but the core problem of complexity makes it hard for lawmakers to write clear instructions and for disclosers to understand and obey them. The discloser's two important tasks are determining what should be included in t...

This chapter shows that the problem caused by mandated disclosure is both intensive and extensive. It is intensive because decisions are so unfamiliar and extremely complex that considerable learning is needed to understand them. The problem is extensive because these decisions arise in incontinent fashion. To prove that the decisions that mandates...

This chapter argues that even if the (essentially) cognitive problems with information could be overcome—even if disclosees were offered, accepted, understood, and remembered disclosures—people might not make better decisions. First, much of the information disclosed is not needed and cannot improve decisions. Rational people make many decisions wi...

This chapter explains how literacy problems complicate the process involved in making informed decisions. Many people are unable to read many disclosures because they are not literate or numerate enough to decipher them with reasonable effort. This is both because levels of literacy and numeracy are surprisingly low and because the reading levels o...

This chapter argues that people are decision averse in the sense that they make decisions less willingly and less thoroughly than disclosurites expect. When researchers give their subjects the consent forms that the law mandates, they would say, “Whatever.” That whatever is the first of several obstacles in mandated disclosure's path, for the attit...

This chapter argues that simplification helps only sporadically and feebly in terms of addressing the various criticisms leveled against mandated disclosure. For disclosurites, faites simple is almost as essential as full disclosure because it seems to respond so directly to much of the critique of disclosure. However, simplification is more comple...

Perhaps no kind of regulation is more common or less useful than mandated disclosure—requiring one party to a transaction to give the other information. It is the iTunes terms you assent to, the doctor's consent form you sign, the pile of papers you get with your mortgages. Reading the terms, the form, and the papers is supposed to equip you to cho...

This chapter presents evidence showing that mandate disclosure consistently fails to accomplish its stated goals. It begins by asking what standard we should use to assess mandated disclosure and goes on to apply the standard that lawmakers and disclosurites set for it. The chapter then reviews empirical studies of disclosure's success as well as r...

This chapter argues that even if simplification worked better, it would often be defeated by the political dynamics of regulation. First, mandates expand, exacerbating the overload problem. Second, new mandates proliferate, exacerbating the accumulation problem. Mandated disclosure is some sort of a regulatory hydra: cut of one of its heads, and tw...

This concluding chapter clarifies that the book has argued that lawmakers must abandon the use of mandated disclosure, describing it as a failed regulatory method. The book has presented evidence showing that disclosures routinely fail to achieve their purposes. If mandated disclosure is a failure, if it cannot be fixed, and if it can do harm, it s...

This chapter defends decision aversion by showing how mandated disclosures are made yet more forbidding by the so-called quantity question and its two aspects: the overload problem and the accumulation problem. It first discusses the accumulation problem, which arises because disclosees are bombarded with many disclosures in many different areas. I...

Perhaps no kind of regulation is more common or less useful than mandated disclosure-requiring one party to a transaction to give the other information. It is the iTunes terms you assent to, the doctor's consent form you sign, the pile of papers you get with your mortgage. Reading the terms, the form, and the papers is supposed to equip you to choo...

The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans,...

Written documents called “contracts” are appearing with increasing frequency in clinical practice and the medical literature. There are behavioral contracts for managing “difficult patients,”1 opioid contracts,2 suicide prevention contracts,3 and healthy living contracts.4 Some practices have even asked patients to sign contracts promising not to l...

Objective to elaborate the conceptual theoreticallegal provisions and scientific recommendations for the substantiating the inefficiency of mandated disclosure. Methods general dialectic method of cognition as well as the general scientific and specific legal methods of research based on it. Results the article explores the spectacular prevalence...

Do terminally ill patients have a constitutional right "to decide, without FDA interference, whether to assume the risks of using potentially life-saving investigational drugs that the FDA has yet to approve for commercial marketing, but that the FDA has determined, after Phase I clinical human trials, are safe enough for further testing"? In Abiga...

The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans,...

The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans,...

Lawmakers are stewards of social resources. A current debate—over screening newborns for genetic disorders—illuminates dilemmas of that stewardship that have particularly plagued bioethics. Recently in the Report, Mary Ann Baily and Thomas Murray told the story of little Ben Haygood. He died from MCADD, a genetic disorder that can make long fasting...

Medicine is a profession on which physicians rely for their livelihood and patients for their lives. If physicians do not charge for services, they cannot survive. If patients cannot afford those services, they cannot survive. No wonder many physicians have long agreed that fees are “one of the most difficult problems. . . between patient and physi...

What is Truth? said jesting Pilate; and would not stay for an answer. I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs ef...

The most popular current models of medical decision making, identified by names such as shared decision making, informed decision making, and evidence-based patient choice, portray an empowered patient actively involved in his or her medical choices and generally assume that patient and physician reach agreement. These models are limited to a speci...

When patients pay for care out-of-pocket, physicians must balance their professional obligations to serve with the commercial demands of medical practice. Consumer-directed health care makes this problem newly pressing, but law and ethics have thought for millennia about how doctors should bill patients. At various points in European history, the l...

The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's once promising answer--managed care--has been politically ravaged, and consumerist solutions are now winning favor. This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds tha...

We undertook a qualitative e-mail survey of federally-funded principal investigators of their views of the US human subjects protection system, intended to identify the range of investigator attitudes. This was an exploratory study with a 14% response rate. Twenty-eight principal investigators responded; their comments were analyzed to show underly...

HASTINGS CENTER REPORT 9January-February 2008 [I]t is as craftsmen that we get our satisfactions and our pay. —Learned Hand The Bill of Rights Oliver Wendell Holmes—a greatjudge—said that “the com-mand of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out thei...

A specter haunts health law, the specter of exhaustion. Our field was once vibrant with new issues and fresh ideas. Today, scholarship routinely recycles old proposals about recurring problems. The dominant paradigms - patient autonomy and market theory - have largely done their work and run their course. And while new perspectives are struggling t...

24 HASTINGS CENTER REPORT May-June 2005 And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye? . . . Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye. —MATTHEW 7:3-5 The law of bioethics has been t...

It is easy to forget but crucial to remember that when lawmakers decide to regulate an activity, they must select a method. The law of bioethics particularly favors one method—requiring disclosure of information. The doctrine of informed consent obliges doctors to tell patients their treatment choices. The administrative law of research ethics insi...

In pursuit of the dream that patients' exercise of autonomy could extend beyond their span of competence, living wills have passed from controversy to conventional wisdom, to widely promoted policy. But the policy has not produced results, and should be abandoned.

Instructional advance directives (i.e., living wills) have been endorsed widely as a crucial method for maintaining seriously ill patients' autonomy at the end of life. Theoretically, living wills maintain the patient's voice in treatment decisions by enhancing the ability of surrogate decision makers to make the treatment choices that patients wou...

Routine cancer screening with prostate-specific antigen (PSA) is controversial, and practice guidelines recommend that men be counseled about its risks and benefits. To evaluate the process of decision making as men react to and use information after PSA counseling. Written surveys and semistructured qualitative interviews before and after a neutra...

This essay examines the relationship between American culture and American family law at the end of the century. The author proposes a hypothesis: that Americans live in an age of distrust, an age in which they feel less able than before to anticipate how people will behave and to be confident that others will not injure them. They trust social ins...

Let us look to America, not in order to make a servile copy of the institutions that she has established, but to gain a clearer view of the polity that will be the best for us; let us look there less to find examples than instruction; let us borrow from her the principles, rather than the details, of her laws. The laws of the French republic may be...

This is a book written across the grain of contemporary ethics, where the principle of autonomy has triumphed.It is an attempt to see the law of medicine, the principles of bioethics, and the encounter between doctor and patient from the patient's point of view. While Schneider agrees that many patients now want to make their own medical decisions,...

This multidisciplinary discussion focuses on the case of a young diabetic woman who chose to stop chronic hemodialysis during a long and complicated illness. The perspective presented here include an academic lawyer's view of such medical decisions; a hospital chaplain's view of the religious framework for end-of-life situations; a clinical psychia...

Law provides a rich language for thinking about bioethical issues and is a tool for action as well as talk. But the language of the law, often inapt, regularly fails to achieve its desired effect.

Family law has undergone momentous change in recent decades. In this Article, Professor Schneider proposes that the transformation in family law can be understood as a diminution in the law's discourse in moral terms about the relations between family members and as a transfer of moral decisions from the law to the people the law once regulated. Pr...

Writers on jurisprudence often stress that conflict between positive laws and morality does not invalidate the positive laws. A law which requires me to compensate another for an injury caused by a dangerous object kept on my property is not invalidated by the fact that I have not been negligent and have no moral obligation to compensate the injure...