Best of: Criminal, Family and Medical Law (Volume 1, Issue 4, forthcoming)

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Children and the Reach of Family Property: The Rhetoric and the Reality

Mark Henaghan & Christian Poland

Children are a central part of families. The Convention on the Rights of the Child declares that children’s best interests are a primary consideration in all state decisions that concern children, which includes the setting up of family property regimes. The Convention also declares that all children have the right to an adequate standard of living to develop fully. Access to family property, either directly or indirectly, is central to a child’s standard of living. This chapter focuses on the central importance for a child’s well-being of the family home to argue that family property regimes do not reach far enough to satisfy the aspirations of the Convention. The chapter discusses where the entitlements of children sit in relation to the hierarchy of other entitlements that the law has constructed. Historically, children have been seen as dependants of their parents like how women were seen as dependants of their husbands.

Are State Public Option Health Plans Worth It?

Jaime S. King, Katherine L. Gudiksen, & Erin C. Fuse Brown

The COVID-19 pandemic exposed the weaknesses of the U.S. health care system’s reliance on private, employer-based health insurance. The crisis in health care access and affordability has increased support for a public option— the choice to purchase a state-initiated health plan with publicly determined rates. Congressional gridlock, however, may dim the chances for a federal public option. States have stepped into the policy vacuum, proposing forty-nine bills to establish state public options since 2010, including three that became law. This article provides a comprehensive survey and taxonomy of state public option proposals from 2010–2021, identifying three main models: (1) Medicaid Buy-In Public Options; (2) Marketplace-Based Public Options; and (3) Comprehensive Public Options. Though each model serves different policy goals and varies in scope, the defining aim of all public option plans is to improve access to affordable health coverage by applying public payment rates to the private insurance market. We seek to answer whether state public option plans are legally viable and “worth it” for states to pursue. The answer is yes to both, but, surprisingly, the degree of legal difficulty is inversely related to the scope of the plan’s reach—the broadest plans have fewer legal hurdles than narrower plans. Moreover, the policy effects increase with the scope of the plan and the robustness of the controls on provider payment rates. Public options with modest provider rate controls may have too little impact on affordability and costs, falling short of their defining goal of improving affordability. As a result, the legal and political difficulty of enacting such plans may not be worth it. State public option plans may be most effective when they cover a broad swath of the population and pursue robust provider rate controls. In short, for state public option plans to be worth it, bigger is better.

In This Together: Climate Change, Health and the Potential of International Collaboration

Jaime S. King, Joanna Manning & Alistair Woodward

Climate change exacts a devastating toll on health that is rarely incorporated into the economic calculus of climate action. By aligning health and environmental policy and collaborating across borders, governments and industries can develop powerful initiatives to promote both environmental and human health.

From prosecution to rehabilitation: New Zealand's response to health practitioner negligence

Ron Paterson

In this chapter, I seek to do four things: establish the shift from prosecution to rehabilitation; suggest some reasons for the shift; explain why, having investigated many cases where a health practitioner could have been prosecuted for manslaughter (or a lesser criminal offence), I now support only a very limited role for the criminal law in response to adverse events in healthcare; and argue that the pendulum may have swung too far in New Zealand, at the expense of proper accountability for injured patients and their families.

Māori Rejections of the State’s Criminal Jurisdiction Over Māori in Aotearoa New Zealand’s Courts

Fleur Te Aho & Julia Tolmie

A significant and little-known protest is happening in Aotearoa New Zealand's criminal court. For years, on an almost daily basis, Māori defendants have been rejecting the state's exercise of criminal jurisdiction over them-claims that have been repeatedly rejected by the courts. In this article, we examine the extent and nature of this jurisdictional protest in the criminal court and offer some initial reflections on the implications of the protest and the court's response to date. We suggest that this protest is notable both for its scale and, at times, sophistication but that the court's response has been simplistic-dismissing without truly addressing the defendants' arguments. In our view, the courts cannot authentically address such claims without first acknowledging that their jurisdiction-and the state's authority to govern Māori-is founded on an illegitimate and unilateral assumption of power.

Securing Fair Outcomes for Battered Women Charged with Homicide: Analysing Defence Lawyering in R v Falls

Elizabeth A. Sheehy, Julie Stubbs & Julia Tolmie

Despite law reforms intended explicitly to improve their prospects of receiving fairer consideration within the criminal justice system, it is still the case that most battered women accused of homicide are not successful in relying on self-defence. Defending battered women charged with homicide offers substantial challenges for defence lawyers. Acquittals leave little trace in standard modes of legal reporting and thus there are few opportunities for defence lawyers to examine the advocacy of their peers. In this article we document strategies that may support successful outcomes with specific reference to R v Falls, in which a battered woman charged with murder in ‘non-confrontational circumstances’ was acquitted on the basis of self-defence.