Empirical analyses explaining litigation outcomes are not often attempted either in legal scholarship or in the sociology of law. There are studies focusing on conversation analysis in mediation, but few other empirical issues in litigation have been examined in depth. In addition, there is little theory addressing the causes of litigation outcomes in legal scholarship. Similarly, there are few micro-level studies or theories in the sociology of law, other than that of Donald Black, that address the litigation process. There are several reasons for the dearth of studies. Determining outcomes of actual, filed civil cases is difficult, tedious, and time-consuming. There are few databases from which samples may be drawn in a systematic way. Cases must be identified. Court records must be found, read, and abstracted. Critical information about cases is often not a part of the court file. For example, official court records seldom state whether a monetary settlement was reached, and, if so, the terms of that settlement. Instead, court records merely indicate either that the court rendered a judgment or dismissed the case. Why the case was dismissed, or on what terms the case was dismissed, is seldom disclosed. Nonetheless, there is a great need for the insights to be gained from empirical studies based on court records supplemented by additional sources such as archival data, questionnaires, and interviews. Such studies could lead to a richer understanding of the conflict resolution process as it is conducted in the civil court system. The work of Miller and Sarat provides an example. More than twenty-five years ago, Miller and Sarat described the litigation process in the larger context of what they called the "dispute pyramid," with layers of grievances, claims, disputes, filings (involving lawyers), court filings, trials, and appeals. They discussed the process of case attrition, and noted that this attrition may be pronounced. The result resembles a pyramid, with only the most durable cases rising through each layer to reach the top. The shape of the dispute pyramid varies by type of case, but what all these pyramids have in common is that very few cases survive to the apex-a pattern supported by considerable empirical evidence. Many, but not all, cases settle for money being paid to the plaintiff. Other cases are simply dropped prior to trial without any money being paid to the plaintiff. Thus, a successful plaintiffs lawyer must have the ability to select cases that are likely to settle or, if a trial occurs, that are likely to result in a plaintiff's verdict.

This Article describes the ethical, legal and public health implications of routine HIV testing - that is, testing such that individuals receive a routine offer of an HIV test whenever they come into contact with the health care system. In recent months, the consensus in favor of voluntary testing has yielded to a debate over whether efforts to curb the spread of HIV and to treat individual patients themselves would benefit from health care providers initiating testing. This Article first describes the history of HIV testing policy in the United States and internationally. It outlines the arguments in favor of routine provider-initiated testing and responds to objections that have been raised in the literature. Finally, it describes a proposal for an ethical routine testing regime that is consistent with human rights principles as well as U.S. and international statutes and case law on testing. This Article also proposes model legislation that addresses the issues of counseling, confidentiality, and informed consent in the context of routine-offer HIV testing.

When an adult suffers from a disorder that impairs his or her capacity to consent, may another person enroll that individual in research? The answer, it appears, is not a simple "yes" or "no," but rather "it depends." The lack of clear legal answers to this question has significant ramifications for the conduct of important research on disorders that affect many individuals. A growing population in our country suffers from illnesses that may affect decision-making, such as dementia, mental retardation, or, in certain instances, severe neuropsychiatric disorders. To illustrate this point, consider Alzheimer's disease ("AD"). As the most common cause of dementia, the current and projected impact of AD is immense. An estimated four to fifteen million people are expected to suffer from Alzheimer's disease by the year 2047. Beyond the quantitative impact of AD, the personal and relational costs of the disease are staggering. Patients in later stages may not recognize family members and often lose many of their core human traits and abilities. Many patients face institutionalization because of the common, yet extremely challenging, behavioral and psychiatric expressions of the disease. The financial costs are also significant. Current annual costs, both direct and indirect, approach $100 billion in the United States alone. It is urgent that research on this disease be strongly encouraged and facilitated.

The debate over the regulation of resident working hours has been one of the most significant recent controversies in graduate medical education. A diverse array of organizations, including Congress, state governments, administrative agencies, and the Accreditation Council for Graduate Medical Education (ACGME), have had to confront this issue at some point over the past two decades. While a consensus has developed that at least some aspects of resident working conditions should be regulated in order to enhance patient safety, there remains an ongoing controversy over which organizations should implement and oversee these regulations. This Note examines and evaluates the costs and benefits of allowing certain bodies to regulate physician residency programs. Although most scholarship has promoted regulation either by governmental entities, the ACGME, or residents themselves, none of these groups is suited to this task. This Note argues that the ideal regulatory system should involve a decentralized private sector approach, achieved by ending the ACGME monopoly over graduate medical education accreditation and allowing for multiple accrediting agencies. Switching to a private decentralized system would allow for greater experimentation, which would increase the likelihood of discovering the best way to regulate resident working conditions to enhance patient safety.

This Article addresses the present state and future prospects of the field of bioethics. The subject is open to more than one attitude of address. Possibilities include preoccupation with the professional status of bioethics, critical scrutiny of its research programs and methodologies, and anxiety about whether some areas of bioethics have become intertwined with-and perhaps co-opted byextra- professional, extra-academic agendas, such as those that drive profitmaking enterprises (pharmaceuticals, biotechnology, HMOs) or partisan politics (debates over abortion, stem cell research, withdrawing artificial nutrition and hydration from patients like Terri Schiavo). These attitudes, whatever their merits, are all somewhat self-focused. Without denying the importance of the problems they target or the necessity of continual self-critical reflection among the practitioners and friends of bioethics, this Article assumes a more straightforward, outward-looking stance. This stance is meant to complement the inward-looking attitudes and to affirm the values that motivate them. Those of us who work in bioethics can demonstrate the professional and academic value of our field only through the substance of the contributions we make in its name. With respect to worries about inappropriate involvement with corporate or partisan agendas, the issue is protecting the intellectual integrity we need in order to make headway on problems whose solutions cannot be left to the rough-and-tumble of the market and the political arena. We ought to set our own research agenda, rather than acquiesce in its distortion by external interests, political pressures, and popular sensations du jour.

According to one prominent study, adults in the United States receive the generally accepted standard of preventive, acute, and chronic care only about 55% of the time. The likelihood that patients will receive recommended care "varie[s] substantially according to the particular medical condition, ranging from 78.7 percent of recommended care . . . for senile cataract to 10.5 percent of recommended care ... for alcohol dependence." Evidence of low-quality care appears in Medicare, the federal health program for the elderly and disabled. Quality of care does not appear to be higher in areas where Medicare spending is higher. In fact, some studies point to the somewhat paradoxical conclusion that Medicare patients are often less likely to receive recommended care in regions where Medicare expenditures are highest. Third-party payment is a potential contributor to the under-provision of quality health care. Most health care payments in the United States are made by third parties, usually employers, insurers, or government. Those purchasers typically reimburse health care providers on the basis of the volume and intensity of the services provided, rather than the quality or cost-effectiveness of those services. The result is a financing system akin to paying academics on the basis of the volume and intensity of footnotes.

Given the close connection between bioethics and biomedical technology, it is hardly surprising that bioethicists often think about the future. There is a certain prophetic pleasure that comes with predicting the problems ahead, and a strong inclination to believe that our ethical thinking needs to "keep pace" with our technology, constantly updating its moral vision of man in light of the material possibilities of the age. In some sense, of course, this is true: Our ethics does need to keep pace with our changing technological condition. New problems arise for which old thinking is inadequate. Yet, to see the future clearly, it might also help to recover what is first in bioethics - first in the sense of the discipline's origins and first in the sense of man's perennial problems and possibilities. To invite such a recovery is the aim of this Commentary. In one sense, bioethics - at least American bioethics - began in the 1960s and 1970s, with a group of philosophers, theologians, and physicians interested in the future of human life in the budding age of biotechnology and advanced medicine. They held meetings. They wrote articles. They advised government bodies and influenced judicial decisions. They debated issues ranging from endof- life care to organ transplantation to research with human subjects to the initiation of human life in the laboratory. Through their labors, a new discipline and myriad new institutions were born: think-tanks, journals, degrees, commissions, committees, consultants, and media stars. Yet many of the questions these first bioethicists were asking were in fact very old, and so were many of the conflicting answers. New technological possibilities - such as in vitro fertilization, genetic testing of the unborn, the biochemical manipulation of psychic experience, the extended preservation of bodies between life and death, the transfer of body parts from the newly dead to the still living - were altering some of the fundamental experiences of being human. But these technical possibilities made us anxious because the image of man himself seemed to be at stake, with all the old conflicts and perennial problems about the good life and good death taking on a new, dramatic shape. Recovering this clash of images is the first step toward understanding the origins and thus the future of bioethics. In a very modest way, I'd like to attempt such a philosophical recovery in two parts: first, by exploring certain permanent alternatives in man's quest to live well with death, which is the problem that stands at the heart of many modern bioethical quandaries; and second, by looking at the founding framework for addressing such moral questions in America, namely the Declaration of Independence, with its mysterious teaching about human equality and human happiness. That mortality and equality should be considered together seems only fitting: In death, our ultimate equality is restored; in the circumstances of death, the inequities of nature and chance are sharply revealed; in seeking to conquer or ameliorate the sting of death, we are tempted to set the democratic ideal of equality aside. Only by recovering a deeper wisdom about mortality and equality can we consider wisely the future of bioethics - and, in particular, how new technologies and new social conditions will re-open, yet again, in ever novel ways, those inescapable problems that are inherent to being human.

Jay Katz has been one of the most profound and enduring influences on my life as a legal scholar. His influence began at the very moment I entered the Yale Law School as a student in 1962. My understanding of the uses of psychoanalysis in legal analysis begins with the memory of my first encounter with him. I believe that my personal experience mirrors more generally how Jay came to influence all of his students-those lucky enough to sit in his classes as well as those who have only encountered him through his writings. Here then is my memory of my first classroom session with Jay Katz. I had just arrived at Yale Law School in 1962 after two years at Oxford studying law. Yale treated my Oxford degree as the equivalent of the first year course of study; so I began in effect as a transfer student with second-year status. (If you'll excuse the pun, it was transference all the way down from that moment onward.) This transfer status meant that I was immediately eligible for taking some upper-class courses and I enrolled in Family Law - taught by Professors Joe Goldstein and Jay Katz - and this was the first class I attended on my first day at Yale.

Like the other contributors to this symposium, I owe a profound debt to Jay Katz for his intellectual rigor, his gentle but firm Socratic pedagogy, and his unparalleled generosity of time and friendship. I first met Jay during my last year of law school when, at the urging of friends, I enrolled in his seminar on informed consent. By that time, he had collected most of the materials on which he based his important book. Not surprisingly, a single semester could not contain all of that material, so many of us continued on into the second semester. During that time I learned a number of things, but largely in the abstract mode that often characterizes the law school classroom. Fortunately, I had the opportunity after my first year in medical school to work on Jay's book, The Silent World of Doctor and Patient. I am not sure that I contributed much. I have always viewed that summer as Jay's effort to create a tutorial designed to make sure I "got it." Even so, it required actually taking care of patients for the last twenty years to bring some of his lessons home. Over the years, I have come to see the physician-patient relationship not simply as a dyad of autonomous individuals, but as one part, albeit an important and complex part, of a web of dynamic interactions that influence both parties. This perspective has important implications. The work of Barabási and others has shown that networks are fluid, self-creating, and always changing. At the same time, networks tend to respond poorly or unexpectedly to deliberate attempts to induce change. Pressure at one point can lead to a countervailing response at another. This understanding provides additional insights into people's actions and suggests both reasons for resistance as well as the possibility of support from unanticipated sources.

I have known Jay Katz for over forty years, and I have been his colleague for nearly twenty. It is my great joy to welcome you all here and especially to thank Bob Levine and Alex Capron, Bo Burt, David Tolley, and Carol Pollard for putting this program together. You all know Jay Katz's story. He was born in Germany and emigrated to the United States at the age of eighteen. He earned his doctorate at Harvard Medical School, which he followed with a medical internship at Mount Sinai. Next is the part of his resume that has always been the most exciting and mysterious to me: his service as Captain Katz of the United States Air Force. (Imagine what that must have been like!) He first came to Yale as an assistant medical resident more than fifty years ago, and then to the Yale Law School as Assistant Professor of Psychology of Law in 1958. In time, Jay became Professor of Law, Science, and Medicine; the John Garver Professor of Law and Psychoanalysis; and the inaugural Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry. He has received numerous honorary degrees and delivered many named lectures. His greatest works, of course, are his books: The Family and the Law, with our beloved colleague, Joe Goldstein; Psychoanalysis, Psychiatry, and Law, with Joe Goldstein and Alan Dershowitz; Experimentation with Human Beings, with Alex Capron and Eleanor Swift Glass; and his landmark work, The Silent World of Doctor and Patient. Reading the introduction to that book, one can see that Jay's special skill lies in his ability to be both an outsider and an insider in the worlds of law and medicine. Upon reflection, the concept of "outsider-insider" is a description not just of Jay as a person, but also of the role that he defined for a doctor vis-à-vis his patient. On the one hand, Jay said, the doctor must be united with his patient in the act of healing and analysis; on the other, he must be sufficiently removed from his patient to retain his own objectivity.