Quiet man on campus

It's almost time for the NCAA men's basketball tournament, an event I've often milked for MoneyLaw material. I usually cheer against the Ivy League representative, because of and not in spite of my Harvard degree.

This year, though, I might make an exception if Cornell makes the field. Like Shane Battier, a professional player recently hailed on these pages, Cornell star Ryan Wittman plays for the name on the front of the jersey, not the name on the back:

To best explain Ryan Wittman’s productive yet humble basketball career at Cornell, Coach Steve Donahue points to Wittman’s socks.

When Donahue recruited Wittman, the son of Randy Wittman, a former N.B.A. coach and Indiana star, he worried about the locker room dynamic. Would the son of an N.B.A. lifer stand out? Would he wear all kinds of fancy gear? Would he act spoiled?

But as Wittman has emerged as a candidate for Ivy League player of the year, his career has evolved into a delightful paradox: he has stood out by blending in.

Wittman, a 6-foot-6 junior, never brings up his family’s basketball heritage unless he is asked. His teammates and coaches say they have never seen him wear N.B.A. gear, even those socks with the N.B.A. logo that are ubiquitous in college hoops. Instead, he epitomizes Donahue’s team-first ethos, which has turned Cornell, which is closing in on its second consecutive N.C.A.A. tournament bid, into an Ivy juggernaut.

Obama Moves to Raise Estate Tax

President Barack Obama has announced his intention to increase the estate tax:

President-elect Barack Obama and congressional leaders plan to move soon to block the estate tax from disappearing in 2010, suggesting the levy might outlive the "Death Tax Repeal" movement that has tried mightily to kill it.

The Democratic stance on the estate tax contrasts with Mr. Obama's reluctance to press forward with his campaign pledge to raise income-tax rates on top earners, which he worries could have an adverse economic impact during a recession.

But Democrats are determined to act quickly to prevent the estate tax's scheduled repeal. Elimination of the levy on big inheritances was approved by Congress under President George W. Bush in 2001, with rollbacks phased in slowly and its full elimination slated to take effect next year.

The Senate Finance Committee will move within weeks on legislation to reverse that law, and Mr. Obama is expected to detail his estate-tax preservation proposal in his budget next month, congressional tax writers said.

Under the Obama plan detailed during the campaign, the estate tax would be locked in permanently at the rate and exemption levels that took effect this year. That would exempt estates of $3.5 million -- $7 million for couples -- from any taxation. The value of estates above that would be taxed at 45%. If the tax were returned to Clinton-era levels, it would exclude $1 million from taxation with the rest taxed at 55%....

Obama Plans to Keep Estate Tax, Wall Street Journal Online, January 12, 2009

See also:

Barack Obama, Democrat for President, On Estate Taxes

The Caroline Kennedy rule

An otherwise obscure political confession forms the basis of a bedrock principle of academic governance. Witness this February 20, 2009, revelation by David A. Paterson, governor of New York:

For the first time, Gov. David A. Paterson acknowledged Friday that he personally ordered his staff to contest Caroline Kennedy’s version of events in the hours after she withdrew from consideration to be United States senator.

However, Mr. Paterson said that he was bewildered when his staffers subsequently unleashed harsh personal attacks against Ms. Kennedy, saying he merely wanted them to challenge the assertion from Ms. Kennedy’s camp that she had been his first choice to replace Hillary Rodham Clinton.

“The things said about Caroline I found despicable and shocking and very painful,” the governor said in a telephone interview, adding, “I never would have imagined removing the idea that this is my first choice meant a character assassination.”

The governor’s handling of the Senate selection process and his administration’s treatment of Ms. Kennedy drew intense criticism. Ms. Kennedy withdrew her name just after midnight Jan. 22, a development that embarrassed Mr. Paterson and set off fears in his inner circle that anyone he then selected would look like a second choice.

That afternoon, members of the administration called reporters, and, under cloak of anonymity, claimed that serious tax problems and issues with a domestic worker had emerged during the vetting of Ms. Kennedy, helping to derail her candidacy. Those claims were highly exaggerated, all sides now acknowledge; no serious or disqualifying issues had arisen.

The attack bewildered Democrats across the country, and Mr. Paterson’s poll numbers suffered significant declines in the subsequent weeks.

Mr. Paterson stressed in the interview that he had been acting only out of a desire to rebut the specific point that Ms. Kennedy had been his first choice.

He said he told his staff: “Let’s try to point out that we’re not indicating that anybody is the No. 1.”

“I understood we’d be pushing back for that,” he said, adding, “How that turned into what happened is something I have to take responsibility for.”

Indeed. Let's give two cheers for Governor Paterson. First, for all the political damage he has inflicted upon himself, David Paterson didn't so thoroughly muff his seventeenth amendment responsibilities that he needed to be removed from office. And if you think that besting Rod Blagojevich in political ethics is too modest an achievement to laud, then join me in thanking Governor Paterson for his part in inspiring a MoneyLaw principle that I'll call "the Caroline Kennedy rule."

Read the rest of this post . . . .Jobs are important things, whether they're seats in the United States Senate or appointments to the faculty or dean's office of a law school. Precisely because they are important and scarce and coveted, those vested with the responsibility to fill these positions should approach that task with the utmost care. More often than not, there will more candidates than open positions. Choose carefully.

Simply to acknowledge the gravity and difficulty of the selection process, however, is not to excuse the sordid misbehavior that decisionmakers, whether they are governors or law professors, often indulge in order to justify their choices. There is a universe of legitimate reasons to hire someone — or, for that matter, to pass over one candidate in favor of another. Pick one.

What happens all too often, though, is that the decisionmaker feels some twisted need to pile on. As though the legitimate reasons were not enough — or perhaps because the decisionmaker suspects, perhaps even knows, that she or he cannot marshal a convincing case on the merits — the decisionmaker wraps the rejected candidate in abuse. Caroline Kennedy, according to Governor Paterson's staff, was morally unfit to serve as Senator because she allegedly exploited her household help and dodged federal income tax. In retrospect, none of that was true, and neither Governor Paterson nor his staff have retained their dignity.

It would have been easy enough for Governor Paterson to say, straightforwardly and candidly, that he considered Kirsten Gillibrand a better choice than Caroline Kennedy to replace Hillary Clinton in the Senate. As a matter of actual political experience, as opposed to genealogy or name recognition, it would have been almost impossible to refute that basis for preferring Kirsten Gillibrand. Instead, David Paterson inflicted upon himself a gaping political wound.

Academia should learn from Governor Paterson's folly. It is very easy to reject any candidate for an academic appointment, at any rank from postgraduate research fellow to university president, on grounds of talent, experience, and/or "upside." Feeling the need to buttress the case against a particular candidate by trashing that person's character, at best, displays the decisionmaker's own moral failings. Though those shortcomings might arise from no more than personal insecurity about one's own capacity to decide, they reflect very poorly on those who trash. That is the legacy that the debacle over Caroline Kennedy's Senate candidacy leaves to academia. We would do well to take the lesson to heart.

Unexceptional

In what has become a de facto series, MoneyLaw has spotlighted some recent posts by Stanley Fish on academic freedom and the tendency of some professors to stretch that concept. Fish now helps us to think more clearly about academic freedom by offering this simple reminder: academics, far from being unique, much less entitled to unique legal protection, are simply unexceptional.

Once again Fish invokes a forthcoming book, Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009), in criticizing the commonplace but untenable "conviction that academic freedom confers on professors the right to order (or disorder) the workplace in any way they see fit, irrespective of the requirements of the university that employs them":

[Quoting Finkin and Post:] “[A]cademic freedom has in recent decades increasingly come to be conceived of as an individual right to be asserted against all forms of university regulation.” . . .

[There are those who argue] that a teacher’s responsibility is to the ideals of truth and justice and not to the parochial rules of an institution in thrall to intellectual, economic and political orthodoxies. . . . Academics, in this view, exercise freedom only when they subject the norms of the institution to a higher standard and act accordingly. [In other words,] the university may pay my salary, provide me with a platform, benefits, students, an office, secretarial help and societal status, but I retain my right to act in disregard of its interests; indeed I am obliged by academic freedom to do so.

It would be hard to imagine another field of endeavor in which employees believe that being attentive to their employer’s goals and wishes is tantamount to a moral crime But this is what many (not all) academics believe, and if pressed they will support their belief by invoking a form of academic exceptionalism, the idea that while colleges and universities may bear some of the marks of places of employment — work-days, promotions, salaries, vacations, meetings, etc. — they are really places in which something much more rarefied than a mere job goes on. . . .

One sees from this and similar statements that an understanding of academic freedom as a right unbound by the conditions of employment goes hand in hand with, and is indeed derived from, an understanding of higher education as something more than a job to be performed; rather it is a calling to be taken up and followed wherever it may lead, even if it leads to a flouting of the norms that happen to be in place in the bureaucratic spaces that house (but do not define) this exalted enterprise. . . .

The alternative is to understand academic freedom as a much more earthbound thing, as a freedom tailored to and constrained by the requirements of a particular job. And this would mean reasoning from the nature of the job to a specification of the degree of latitude those who are employed to do it can be said to enjoy. This is Finkin’s and Post’s position: “Academic freedom is not the freedom to speak or teach just as one wishes. It is the freedom to pursue the scholarly profession … according to the norms and standards of that profession.”

Statements like this are likely to provoke the objection that “Academe should not be a Business or a Corporation” . . . . But that is a fake issue. Saying that higher education has a job to do (and that the norms and standards of that job should control professorial behavior) is not the same as saying that its job is business. It is just to say that it is a job and not a sacred vocation, and that while it may differ in many ways from other jobs — there is no discernible product and projects may remain uncompleted for years without negative consequences for researchers — its configurations can still be ascertained (it is not something ineffable) and serve as the basis of both expectations and discipline. . . .

Once again we see that the argument for academic freedom as a right rather than as a desirable feature of professional life rests on the assertion of academic exceptionalism. . . . [W]hile academic work is different — it’s not business, it’s not medicine, it’s not politics — and while the difference should be valued, academic work should not be put into a category so special that any constraints on it, whether issuing from university administrators or from the state as an employer, are regarded as sins against morality, truth and the American Way.

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Rocket man

One of MoneyLaw's recurring themes is the search for gritty, unglamorous faculty members who elevate an entire school's performance. In the context of teaching, we laud the utility law teacher. In the never-ending quest to neutralize destructive faculty members — Arschlöcher habt Ihr immer bei Euch — we've also turned to plus-minus, a crude but revealing hockey statistic.

Michael Lewis, of Moneyball fame, has now added one more story to MoneyLaw's repertoire of narratives highlighting the value of good teamwork. His latest contribution, The No-Stats All-Star, sheds light on the "basketball mystery" called Shane Battier, a player who "is widely regarded inside the NBA as, at best, a replaceable cog in a machine driven by superstars," yet confers upon "every team he has ever played on . . . some magical ability to win."

Click here to read the rest of this post . . . .Basketball has evidently caught "[t]he virus that infected professional baseball in the 1990s, the use of statistics to find new and better ways to value players and strategies." According to Lewis, "every major sport . . . . now supports a subculture of smart people who view it not just as a game to be played but as a problem to be solved." These new thinkers seek "new statistics" and exhibit an "intense interest in measuring the impact of every little thing a player does on his team’s chances of winning." The difference is that basketball "happens to be the sport that is most like life":

There is a tension, peculiar to basketball, between the interests of the team and the interests of the individual. The game continually tempts the people who play it to do things that are not in the interest of the group. On the baseball field, it would be hard for a player to sacrifice his team’s interest for his own. Baseball is an individual sport masquerading as a team one: by doing what’s best for himself, the player nearly always also does what is best for his team. . . . In football the coach has so much control over who gets the ball that selfishness winds up being self-defeating. The players most famous for being selfish — the Dallas Cowboys’ wide receiver Terrell Owens, for instance — are usually not so much selfish as attention seeking. Their sins tend to occur off the field.

It is in basketball where the problems are most likely to be in the game — where the player, in his play, faces choices between maximizing his own perceived self-interest and winning. The choices are sufficiently complex that there is a fair chance he doesn’t fully grasp that he is making them.

Taking a bad shot when you don’t need to is only the most obvious example. A point guard might selfishly give up an open shot for an assist. You can see it happen every night, when he’s racing down court for an open layup, and instead of taking it, he passes it back to a trailing teammate. The teammate usually finishes with some sensational dunk, but the likelihood of scoring nevertheless declined.

Shane Battier, a forward playing for the Houston Rockets, may be "the most abnormally unselfish basketball player." Lewis calls him "the player who seems one step ahead of the analysts, helping the team in all sorts of subtle, hard-to-measure ways that appear to violate his own personal interests." He is valuable not because of his raw athleticism, but in spite of his physical limits:

It was, and is, far easier to spot what Battier doesn’t do than what he does. His conventional statistics are unremarkable: he doesn’t score many points, snag many rebounds, block many shots, steal many balls or dish out many assists. On top of that, it is easy to see what he can never do . . . . “He can’t dribble, he’s slow and hasn’t got much body control.” . . .

Battier’s game is a weird combination of obvious weaknesses and nearly invisible strengths. When he is on the court, his teammates get better, often a lot better, and his opponents get worse — often a lot worse. He may not grab huge numbers of rebounds, but he has an uncanny ability to improve his teammates’ rebounding. He doesn’t shoot much, but when he does, he takes only the most efficient shots. He also has a knack for getting the ball to teammates who are in a position to do the same, and he commits few turnovers. On defense, although he routinely guards the NBA’s most prolific scorers, he significantly ­reduces their shooting percentages. At the same time he somehow improves the defensive efficiency of his teammates — probably . . . by helping them out in all sorts of subtle ways. “I call him Lego,” [Daryl] Morey says. “When he’s on the court, all the pieces start to fit together. And everything that leads to winning that you can get to through intellect instead of innate ability, Shane excels in. I’ll bet he’s in the hundredth percentile of every category.”

It's hard to overstate Battier's value to the Houston Rockets. That team's payroll having been committed, "for many years to come, to two superstars: Tracy ­McGrady and Yao Ming," management needed to seek undervalued, underpaid players. “That’s the scarce resource in the NBA. . . . Not the superstar but the undervalued player.”

"One well-known statistic the Rockets’ front office pays attention to," says Lewis, "is plus-minus, which simply measures what happens to the score when any given player is on the court." The Rockets have evidently refined plus-minus from its crudest form into a powerful evaluative tool. Battier rates a plus 6. “It’s the difference between 41 wins and 60 wins.” In even starker terms, this year's Houston Rockets “have been a championship team with him and a bubble playoff team without him.”

Here in academia, I remain convinced that some version of plus-minus would significantly improve the evaluation of faculty performance. If Battier's story sheds any light on this process, it is this: the single factor that makes a great team player is the mirror image of the single factor that turns even the most productive scholar into a toxic Arschloch: selfishness. Battier has almost none of that trait, and his teamwork makes him the greatest basketball player that no casual fan can name.

But Will You Love Me Tomorrow?

This is rightly a comment but Jim's post below was so thought provoking that I used my Moneylaw hall pass to elevate it to a post. But you should read Jim's first.

I think the possible tension between what the humanities professor wrote, what I wrote, and possibly Jim is thinking is actually pretty thin.

First, like Jim, I am a sucker for character. Tell the truth, do your work, act on behalf of the stakeholders, don't gossip, don't use the School as a base for your jaunts to one conference or another, or push your political agenda too much and we'll get along fine. (The opposite of this is when, as happened to me once on a appointments committee, we were considering a visitor and someone raised the issue of whether he had been making passes (if that phrase is still in use) at students and the Dean, who was sitting in on the meeting, asked if we could move on to the substance of the issue which was whether to hire him.)

Second, like the humanities professor it does seem to me that the most accommodating people are often the most famous. Whether they were that way on the way up is another question as is whether that trait explained their rise. And it certainly is unrelated to what the young emailer in Ready, Set, Punt was referring to when she observed her faculty's appointments meeting. I do not mean to diminish being cooperative and friendly. In fact, I love it but did you ever notice that there is much more of it when people interact with those they do not view as rivals. My most recent post on classbias discusses how this has been found to exist to some extent even with body language. On this point I do have one qualification especially when it comes to niceness extending to organizing symposia. In those instances the cooperation-- especially in law -- often extends to those who are ideologically compatible.

Which bring me to niceness. I am sure the young professor who communicated with me and is quoted in "Ready, Set, Punt" did not mean niceness as in would you kick a dog or drown a hamster. Surely every reader must know that "niceness" is the code for "are you someone with whom I will be socially and politically comfortable." Geez, even George Bush probably thinks Dick Cheney is "nice." Nice in a faculty meeting is only slightly connection to morality, selflessness, or charity. And when it is used it is not so much a comment on the other person in the abstract but how that person makes the speaker feel. Consequently as the young law professor observed (by they way, I did not make up that email) evaluations seemed to shaped by the desire avoid personal political or social discomfort. Some, most, a majority (who knows) are looking for their own Dick Cheneys. And, unlike Bono, they generally find what they are looking for.

So, going back to the football analogy. If personal social and political comfort are critical in determining who gets an offer to join your faculty, it's like a team thinking more about getting drunk together than winning games.

You like me

You like me! You really, really like me!

Jeff Harrison's recent post, Ready, set, punt, has all the hallmarks of a MoneyLaw classic. It exposes one of the abiding pitfalls in academic governance: the tendency to approach faculty hiring with criteria better suited to choosing a partner for a drink after school hours. I agree with Jeff that the drinking buddy test is "a disaster for the stakeholders of a law school."

Yet I find at least some superficial tension with my own post, Talent versus character. By no means am I endorsing — or have endorsed or would ever endorse — the use of the drinking buddy test in hiring. But I do believe that severe character flaws, especially the selfish arrogance typified by the tenured Arschloch who treats his school as a personal expense account, are so inimical to the academic enterprise that I would trade that Arschloch and his entire portfolio for a quiet, thoughtful colleague whose congeniality is as genuine as his output is modest.

Comes now The Chronicle of Higher Education to the rescue. The Chronicle's On Hiring blog recently commented on Ready, set, punt. The seventh comment to that post, by an unnamed "humanities doctoral candidate," is so insightful that I will reprint it here in its entirety. As for the author of that comment, I hereby issue this invitation. Ms. or Mr. Humanities Doctoral Candidate, if you will write me at chen@jurisdynamics.org, I will issue you a hall pass to MoneyLaw. We could use your wisdom here.

As a graduate student, I’ve spent the last six years at lectures and conferences, watching older scholars like a hawk. And one thing that I noticed early on, and has been consistently true throughout my graduate experience, is that the best scholars are also the nicest people.

Perhaps it’s not true everywhere, and I know this will sound very young and idealistic . . . but I’m at a big scary Ivy, and I’ve had a lot of opportunities to see some pretty famous (and some pretty notorious) people.

Nancy Lloyd, First Effort, Plus Time (n.d.)

The really good scholars are self-confident, and that confidence allows them to treat everyone else with respect and kindness. They are excited about ideas, and they are willing to share. Most of all, they are willing to collaborate — they are the ones organizing symposia, inviting guest speakers, cultivating graduate students, and just generally creating the kind of atmosphere where good work flourishes and everyone benefits.

It’s amazing to me how many times I’ve seen people — “established” scholars and younger students alike — give absolutely terrible papers, and then walk around snubbing everyone around them. Insecurity leads to intellectual isolation; people become greedy, self-centered, and unwilling to share. When they do present things, they are often incoherent because they don’t care a whit about sharing their thoughts with the community; indeed sometimes it seems like they try to intentionally make their arguments confusing in order to make themselves seem smarter. It backfires — they end up sounding pompous and priggish, but they don’t end up sparking fresh ideas or adding anything new to the discourse.

Scholarship matters; publications matter; teaching matters. In my department, it’s astonishing that the people who do all these things best — the ones with MacArthur Prizes, the ones with famous books, the ones who attract droves of students — they are also incredibly warm, kind, and friendly. Maybe this isn’t true everywhere, but every day I walk home from school and thank the stars that it’s been absolutely true in my experience.

PS: I should also add that one of our younger faculty members was awarded tenure last month — and yep, he is a brilliant scholar with two good books to his name, but he is also a genuinely nice person and universally loved among us lowly students. I know I will be accused of being very naive for writing all this, but I was the student representative at our faculty meetings for two years and my faith was continually rewarded: my department is full of big-name stars, and it’s amazing to see how beautifully they all get along.

Rankings and discipline: A two-part MoneyLaw series

The road to hell is paved with good intentions

Do the U.S. News & World Report rankings hurt law schools? Yes, according to Michael Sauder and Wendy Nelson Espeland, The Discipline of Rankings: Tight Coupling and Organizational Change, American Sociological Review (February 2009):

Using a case study of law schools, we explain why rankings have permeated law schools so extensively and why these organizations have been unable to buffer these institutional pressures. * * * Rankings create a benchmark for excellence in legal education from which to evaluate how each school measures up. This arbitrary yardstick imposes a metric of comparison that obscures the different purposes law schools serve and generates enormous pressure to improve ranking statistics.

U.S. News has agreed as much. Bob Morse of U.S. News doesn't contest Sauder and Espeland's conclusions: "Sauder and Espeland found that the vast majority of law schools have implemented policies to manage their positions in the rankings. They contend that in the face of intense competition with other schools, many law schools devote extensive resources to manipulating rankings, spending heavily to maintain their rank."

In the face of legal education's constrained and declining resources, this is a terrible result.

Again, the magazine agrees:

It's inevitable that the U.S. News & World Report's Law School rankings would have an impact on law school academics and how law schools are managed, but the fact is that this effect couldn't be further from our intent. The main purpose of the rankings is to provide prospective law school students with much-needed — and clearly desired — comparative information to help them make decisions on where to apply and enroll. In today's legal job market a student's choice of law school plays a considerable role in getting that all-important first legal job. That job is particularly important since some new law school graduates have accumulated over $150,000 in debt just to get their J.D. degree and many need to start paying off their student loans.

U.S. News protests that it never meant to warp the managerial incentives of law schools and their deans, but that is precisely what that magazine's rankings have done. The road to hell is indeed paved with good intentions.

In its own defense and to its credit, U.S. News declares that it "is always willing to work with law school deans and other legal educators to improve the rankings." Very well then. In my capacity as the founder and principal writer of MoneyLaw, I'll accept Bob Morse's invitation. In the second half of this series, I will suggest a few ways to structure law school rankings so that they might provide sound rather than perverse managerial incentives.

Ready, Set, Punt

From time to time a law professor at another school writes to me rather than comment on a post. Here is part of an email from what I assumed to be a first or second year law professor. He or she had just come from an appointments meeting at which a number of candidates were discussed.

"I assumed that the hiring meeting would show me that people took the hiring process seriously. While this was certainly true of a number of people on my faculty (I suspect a majority), others really surprised me. Lessons that I learned from the faculty meeting (based on oral comments at the meeting rather than the vote itself):

1. scholarship matters except for when you like a person

2. the job talk matters except when you like a person

3. when you don't like a person, you say it indirectly ("something does not seem right about them" without explaining what it is)

4. scholarship matters except when you don't like the person

5. written faculty comments on the visit matter except for when they do not

6. we arbitrarily either count or discount practice experience based on how much we like the candidate."

Note that "like" a person plays a role in 5 of the 6 rules. I wonder how the rules might apply to selecting members of a football team.

1. Wide receiver speed matters except when you like the receiver.
2. The punter's hang time matters except when you like a person.
3. When you do not like a lineman say it indirectly. ("Something about his stance just does not seem quite right.")
4. The quarterback's accuracy matters except when you don't like the person
5. What the experts think matters except for when they don't.
6. Yards per carry for a running back either count or are discounted based on how much the candidate is liked.

Pretty crazy way to pick a football team right? The team would lose every game. Is there any reason to think the "like" factor is different for law faculty success. At least in football there will be an objective measure of success and an opportunity to cut players. In law school hiring there are no measures and the initial hiring decisions are for lifetime jobs.

What the young law professor described at his school sounds like a great approach if you are deciding who you want to go down to the bar with after school for a drink -- which sadly may be the standard by which much hiring is done. It's a disaster for the stakeholders of a law school.

Moneyball: The Movie

Details here.

Better to reign in academia than serve in business

Hell . . . Hell is for students

Stanley Fish is on a roll, and MoneyLaw is making the most of it. Having just posted Fish's observations on a new book on academic freedom, I now have occasion to reprint the brilliant opening to Fish's latest column on this subject, The Two Languages of Academic Freedom:

Last week we came to the section on academic freedom in my course on the law of higher education and I posed this hypothetical to the students: Suppose you were a member of a law firm or a mid-level executive in a corporation and you skipped meetings or came late, blew off assignments or altered them according to your whims, abused your colleagues and were habitually rude to clients. What would happen to you?

The chorus of answers cascaded immediately: “I’d be fired.” Now, I continued, imagine the same scenario and the same set of behaviors, but this time you’re a tenured professor in a North American university. What then?

I answered this one myself: “You’d be celebrated as a brave nonconformist, a tilter against orthodoxies, a pedagogical visionary and an exemplar of academic freedom.”

Lest Fish's sarcasm elude this audience — MoneyLaw's readership is overwhelmingly academic, after all, and the members of our profession often have a hard time viewing themselves with honesty, let alone humor or humility — it's worth bearing in mind one judicial observation quoted with approval by Fish: “Academic freedom is not a doctrine to insulate a teacher from evaluation by the institution that employs him” (Carley v. Arizona, 1987).

How to Set Your Marketing Budget

As a new year begins, it’s important not to put off the unavoidable - establishing the firm’s annual marketing budget. Many either simply abide by industry guidelines which suggest that 2-5% of firm revenues should be allocated towards the promotion of the practice, or they just don’t develop one altogether.

But guidelines are just that – guidelines. Usually a wiser approach to budget-setting is to take a “task” approach. Such an approach requires careful consideration of a series of questions addressed in a very specific order:

What should the marketing effort accomplish?
There may be several answers to this, each suggesting a whole range of possible tactics. A firm may be seeking to raise its profile within the community, promote a particular practice area, educate potential clients, highlight the hiring of a new attorney or any combination of such matters. In addition it should determine the relative importance of each of the stated objectives.

What are the potential strategies for each defined objective?
This includes addressing the key issue of the optimal “marketing mix.” The marketing mix is a function of a number of things including the nature of the services being offered, the target audience, the extent and character of the competition, geographical considerations and the economic times. Any and all possible marketing tools should be explored for their viability in addressing the challenges posed in the first question.

How will each potential tactic/marketing tool be maximized?
It’s not enough to develop an advertising campaign if the ad is only going to run once or twice. The most wonderfully designed web site will prove ineffective if the site is not ranked high on the search engines. And a content-rich seminar will not “pay out” if it garners an insufficient number of potential prospects to “convert” into clients. It is important to determine the threshold level of commitment to each activity that will be required in order to make it a success. How many ads? How high a rank on the search engines? How many seminar participants?

What is the cost to implement each potential marketing activity?
This can require some digging but is necessary in order to determine the optimal dollars required if the firm were to implement everything it wished to do at a sufficiently high/strong level (e.g., running ten ads instead of one or two).

Making the requisite cuts
In most cases, implementation of all possible marketing tools utilized at their optimal levels will result in a dollar figure well beyond the realistic scope of the firm. This is where the art of budget-setting comes in to play.

Two options exist. The first is to cut the level of spending allocated to each of the activities. Hence the advertising campaign, the web site optimization, the promotion of the seminar, etc., are all implemented - but at reduced levels. The problem with this is that the level of marketing activity will fall below the threshold necessary to make any of the programs effective. A preferred option is to instead, focus on just some of the potential activities – but at levels high enough to ensure their success. Which activities should be supported in such a way becomes a function of whether the activity addresses the more important of the objectives as determined in Step 1 and by their relative cost.

If you have questions regarding setting your marketing budget, e-mail Les Altenberg or call (856) 810-0400.

Defining academic freedom

Although this item first appeared in the New York Times nearly three months ago, it warrants notice here and now. Stanley Fish praises a new book about academic freedom, Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009):

The authors’ most important conclusion is presented early on in their introduction: “We argue that the concept of Academic freedom . . . differs fundamentally from the individual First Amendment rights that present themselves so vividly to the contemporary mind.” The difference is that while free speech rights are grounded in the constitution, academic freedom rights are “grounded . . . in a substantive account of the purposes of higher education and in the special conditions necessary for faculty to fulfill those purposes.”

In short, academic freedom, rather than being a philosophical or moral imperative, is a piece of policy that makes practical sense in the context of the specific task academics are charged to perform. It follows that the scope of academic freedom is determined first by specifying what that task is and then by figuring out what degree of latitude those who are engaged in it require in order to do their jobs.

If the mission of the enterprise is, as Finkin and Post say, “to promote new knowledge and model independent thought,” the “special conditions” necessary to the realization of that mission must include protection from the forces and influences that would subvert newness and independence by either anointing or demonizing avenues of inquiry in advance. Those forces and influences would include trustees, parents, donors, legislatures and the general run of “public opinion,” and the device that provides the necessary protection is called academic freedom. . . .

It does not, however, protect faculty members from the censure or discipline that might follow upon the judgment of their peers that professional standards have either been ignored or violated. There is, Finkin and Post insist, “a fundamental distinction between holding faculty accountable to professional norms and holding them accountable to public opinion. The former exemplifies academic freedom: the latter undermines it.”

Holding faculty accountable to public opinion undermines academic freedom because it restricts teaching and research to what is already known or generally accepted.

Holding faculty accountable to professional norms exemplifies academic freedom because it highlights the narrow scope of that freedom, which does not include the right of faculty “to research and publish in any manner they personally see fit.”

Indeed, to emphasize the “personal” is to mistake the nature of academic freedom, which belongs, Finkin and Post declare, to the enterprise, not to the individual. If academic freedom were “reconceptualized as an individual right,” it would make no sense — why should workers in this enterprise have enlarged rights denied to others? — and support for it “would vanish” because that support, insofar as it exists, is for the project and its promise (the production of new knowledge) and not for those who labor within it. Academics do not have a general liberty, only “the liberty to practice the scholarly profession” and that liberty is hedged about by professional norms and responsibilities.

I find this all very congenial. Were Finkin and Post’s analysis internalized by all faculty members, the academic world would be a better place, if only because there would be fewer instances of irresponsible or overreaching teachers invoking academic freedom as a cover for their excesses.

26:2H-78. Violations, penalties
28. a. A health care professional who intentionally fails to act in accordance with the requirements of this act is subject to discipline for professional misconduct pursuant to section 8 of P.L.1978, c.73 (C.45:1-21).

b. A health care institution that intentionally fails to act in accordance with the requirements of this act shall be subject to a fine of not more than $1,000 for each offense. For the purposes of this subsection, each violation shall constitute a separate offense. Penalties for violations of this act shall be recovered in a summary civil proceeding, brought in the name of the State in a court of competent jurisdiction pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.).

c. The following acts constitute crimes:



(1) To willfully conceal, cancel, deface, obliterate or withhold personal knowledge of an advance directive or a modification or revocation thereof, without the declarant's consent, is a crime of the fourth degree.

(2) To falsify or forge an advance directive or a modification or revocation thereof of another individual is a crime of the fourth degree.

(3) To coerce or fraudulently induce the execution of an advance directive or a modification or revocation thereof is a crime of the fourth degree.

(4) To require or prohibit the execution of an advance directive or a modification or revocation thereof as a condition of coverage under any policy of health insurance, life insurance or annuity, or governmental benefits program, or as a condition of the provision of health care is a crime of the fourth degree.

d. Commission of any of the acts identified in paragraphs (1), (2), or (3) of subsection c., resulting in the involuntary earlier death of a patient, shall constitute a crime of the fourth degree.

e. The sanctions provided in this section shall not be construed to repeal any sanctions applicable under other law.

26:2H-75. Advance directive shall not affect insurance, benefits coverage
23. The execution of an advance directive pursuant to this act shall not in any manner affect, impair or modify the terms of, or rights or obligations created under, any existing policy of health insurance, life insurance or annuity, or governmental benefits program. No health care practitioner or other health care provider, and no health service plan, insurer, or governmental authority, shall deny coverage or exclude from the benefits of service any individual because that individual has executed or has not executed an advance directive. The execution, or non-execution, of an advance directive shall not be made a condition of coverage under any policy of health insurance, life insurance or annuity, or governmental benefits program.

L.1991,c.201,s.23.

26:2H-76. Advance directive executed in other jurisdictions, validity
24. An advance directive executed under the laws of another state in compliance with the laws of that state or the State of New Jersey is validly executed for purposes of this act. An advance directive executed in a foreign country in compliance with the laws of that country or the State of New Jersey, and not contrary to the public policy of this State, is validly executed for purposes of this act.

L.1991,c.201,s.24.

26:2H-77. Applicability of other law
25. a. The withholding or withdrawing of life-sustaining treatment pursuant to section 15 of this act, when performed in good faith, and in accordance with the terms of an advance directive and the provisions of this act, shall not constitute homicide, suicide, assisted suicide, or active euthanasia.

b. To the extent any of the provisions of this act are inconsistent with P.L.1971, c.373 (C.46:2B-8 et seq.) concerning the designation of a health care representative, the provisions of this act shall have priority over those of P.L.1971, c.373 (C.46:2B-8 et seq.).

Durable powers of attorney for health care executed pursuant to P.L.1971, c.373 (C.46:2B-8 et seq.) prior to the effective date of this act shall have the same legal force and effect as if they had been executed in accordance with the provisions of this act.

c. Nothing in this act shall be construed to impair the rights of emancipated minors under existing law.

26:2H-71. Rules, regulations
19. In accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) the Department of Health shall establish rules and regulations:

a. For the annual reporting by health care institutions, and the gathering of such additional data as is reasonably necessary to oversee and evaluate the implementation of this act. The department shall seek to minimize the burdens of record-keeping imposed by the rules and regulations and shall seek to assure the appropriate confidentiality of patient records.

b. Requiring health care institutions to adopt policies and practices designed to:

(1) Make routine inquiry, at the time of admission and at such other times as are appropriate under the circumstances, concerning the existence and location of an advance directive;

(2) Provide appropriate informational materials concerning advance directives to all interested patients and their families and health care representatives, and to assist patients interested in discussing and executing an advance directive;

(3) Educate patients and their families and health care representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, as appropriate;

(4) Inform physicians, nurses, and other health care professionals of their rights and responsibilities under this act, to assure that the rights and responsibilities are understood, and to provide a forum for discussion and consultation regarding the requirements of this act; and

(5) Otherwise comply with the provisions of this act.

26:2H-73. Immunities
21. a. A health care representative shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.

b. A health care professional shall not be subject to criminal or civil liability or to discipline by the health care institution or the respective State licensing board for professional misconduct for any actions performed in good faith and in accordance with the provisions of this act, any rules and regulations established by the Department of Health pursuant to this act, and accepted professional standards to carry out the terms of an advance directive.

c. A health care institution shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.

26:2H-74. Absence of advance directive, act not applicable
22. The absence of an advance directive shall create no presumption with respect to a patient's wishes regarding the provision, withholding or withdrawing of any form of health care. The provisions of this act do not apply to persons who have not executed an advance directive.

26:2H-70. Existing law preserved; emergency care
18. a. Nothing in this act shall be construed to alter, amend or revoke the rights and responsibilities under existing law of health care institutions not governed by the provisions of this act.

b. The provisions of this act shall not be construed to require emergency personnel, including paid or volunteer fire fighters; paramedics; members of an ambulance team, rescue squad, or mobile intensive care unit; or emergency room personnel of a licensed health care institution, to withhold or withdraw emergency care in circumstances which do not afford reasonable opportunity for careful review and evaluation of an advance directive without endangering the life of the patient.

26:2H-68. Issuance of do not resuscitate order
16. a. Consistent with the terms of an advance directive and the provisions of this act, the attending physician may issue a do not resuscitate order.

b. A do not resuscitate order shall be entered in writing in the patient's medical records prior to implementation of the order.

c. Nothing in this act shall be construed to impair any existing legal authority to issue a do not resuscitate order when the patient has not executed an advance directive.

26:2H-69. Consultation with institutional or regional reviewing body
17. a. An institutional or regional reviewing body which engages in prospective case consultation pursuant to paragraph (4) of subsection a. of section 15 of this act may be consulted by the attending physician, patient or health care representative as to whether it believes that the withholding or withdrawal of the medical intervention under consideration would be in conformity with the requirements of this act, including without limitation: whether such action would be within the scope of the patient's advance directive; whether it may reasonably be judged that the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh its likely benefits; and whether it may reasonably be judged that imposition of the medical intervention on an unwilling patient would be inhumane. The attending physician, patient and health care representative shall also be advised of any other course of diagnosis or treatment recommended for consideration.

Consultation with the institutional or regional reviewing body shall be documented in the patient's medical records.

b. Consultation with an institutional or regional reviewing body acting in accordance with subsection a. of this section is not required. Furthermore, nothing in this act shall be construed to impair the right of a patient, health care representative, physician, nurse, or other health care professional who consults with an institutional or regional reviewing body to:

(1) Seek review by a public agency recognized by law for this purpose; or

(2) Seek review by a court of competent jurisdiction.



c. Nothing in this section shall preclude the transfer of the patient to another appropriate health care professional or health care institution. In this case the health care institution responsible for the patient's care shall assure that the health care professional or health care institution to which the patient is transferred is properly informed of the advice given by the institutional or regional reviewing body.

26:2H-67. Circumstances under which life-sustaining treatment may be withheld or withdrawn
15. a. Consistent with the terms of an advance directive and the provisions of this act, life-sustaining treatment may be withheld or withdrawn from a patient in the following circumstances:

(1) When the life-sustaining treatment is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging life, or is likely to merely prolong an imminent dying process;

(2) When the patient is permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician;

(3) When the patient is in a terminal condition, as determined by the attending physician and confirmed by a second qualified physician; or

(4) In the event none of the above circumstances applies, when the patient has a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn may reasonably be judged to outweigh the likely benefits to the patient from such intervention, or imposition of the medical intervention on an unwilling patient would be inhumane. In such cases prior to implementing a decision to withhold or withdraw life-sustaining treatment, the attending physician may promptly seek consultation with an institutional or regional reviewing body in accordance with section 17 of this act, or may promptly seek approval of a public agency recognized by law for this purpose.

b. Nothing in this section shall be construed to impair the obligations of physicians, nurses and other health care professionals to provide for the care and comfort of the patient and to alleviate pain, in accordance with accepted medical and nursing standards.

c. Nothing in this section shall be construed to abridge any constitutionally-protected right to refuse treatment under either the United States Constitution or the Constitution of the State of New Jersey.

26:2H-64. Effect of instruction directive
12. a. If the patient has executed an instruction directive but has not designated a health care representative, or if neither the designated health care representative or any alternate designee is able or available to serve, the instruction directive shall be legally operative. If the instruction directive provides clear and unambiguous guidance under the circumstances, it shall be honored in accordance with its specific terms by a legally appointed guardian, if any, family members, the physicians, nurses, other health care professionals, health care institutions, and others acting on the patient's behalf.

b. If the instruction directive is, in the exercise of reasonable judgment, not specific to the patient's medical condition and the treatment alternatives, the attending physician, in consultation with a legally appointed guardian, if any, family members, or others acting on the patient's behalf, shall exercise reasonable judgment to effectuate the wishes of the patient, giving full weight to the terms, intent, and spirit of the instruction directive. Departure from the specific terms and provisions of the instruction directive shall be based upon clearly articulable factors not foreseen or contemplated by the instruction directive, including, but not limited to, the circumstances of the patient's medical condition.

c. Nothing in this act shall be construed to impair the legal force and effect of an instruction directive executed prior to the effective date of this act.

26:2H-65. Additional rights, responsibilities of health care institution
13. a. In addition to any rights and responsibilities recognized or imposed by, or pursuant to, this act, or any other law, a health care institution shall have the following rights and responsibilities:

(1) A health care institution shall adopt such policies and practices as are necessary to provide for routine inquiry, at the time of admission and at such other times as are appropriate under the circumstances, concerning the existence and location of an advance directive.

(2) A health care institution shall adopt such policies and practices as are necessary to provide appropriate informational materials concerning advance directives to all interested patients and their families and health care representatives, and to assist patients interested in discussing and executing an advance directive.

(3) A health care institution shall adopt such policies and practices as are necessary to educate patients and their families and health care representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, including but not limited to family and social services, self-help and advocacy services, employment and community living, and use of assistive devices. A health care institution shall, in consultation with the attending physician, assure that such information is discussed with a patient and his health care representative and made a part of the decision making process set forth in section 11 of this act, as appropriate under the circumstances.

(4) In situations in which a transfer of care is necessary, including a transfer for the purpose of effectuating a patient's wishes pursuant to an advance directive, a health care institution shall, in consultation with the attending physician, take all reasonable steps to effect the appropriate, respectful and timely transfer of the patient to the care of an alternative health care professional or institution, as necessary, and shall assure that the patient is not abandoned or treated disrespectfully. In such circumstances, a health care institution shall assure the timely transfer of the patient's medical records, including a copy of the patient's advance directive.

(5) A health care institution shall establish procedures and practices for dispute resolution, in accordance with section 14 of this act.

(6) A health care institution shall adopt such policies and practices as are necessary to inform physicians, nurses and other health care professionals of their rights and responsibilities under this act, to assure that such rights and responsibilities are understood, and to provide a forum for discussion and consultation regarding the requirements of this act.

b. A private, religiously-affiliated health care institution may develop institutional policies and practices defining circumstances in which it will decline to participate in the withholding or withdrawing of specified measures utilized to sustain life. Such policies and practices shall be written, and shall be properly communicated to patients and their families and health care representatives prior to or upon the patient's admission, or as soon after admission as is practicable.

If the institutional policies and practices appear to conflict with the legal rights of a patient wishing to forego health care, the health care institution shall attempt to resolve the conflict, and if a mutually satisfactory accommodation cannot be reached, shall take all reasonable steps to effect the appropriate, timely and respectful transfer of the patient to the care of another health care institution appropriate to the patient's needs, and shall assure that the patient is not abandoned or treated disrespectfully.

c. Nothing in this act shall be construed to require a health care institution to participate in the beginning, continuing, withholding or withdrawing of health care in a manner contrary to law or accepted medical standards.

26:2H-66. Resolution of disagreements
14. a. In the event of disagreement among the patient, health care representative and attending physician concerning the patient's decision making capacity or the appropriate interpretation and application of the terms of an advance directive to the patient's course of treatment, the parties may seek to resolve the disagreement by means of procedures and practices established by the health care institution, including but not limited to, consultation with an institutional ethics committee, or with a person designated by the health care institution for this purpose or may seek resolution by a court of competent jurisdiction.

b. A health care professional involved in the patient's care, other than the attending physician, or an administrator of a health care institution may also invoke the dispute resolution process established by the health care institution to seek to resolve a disagreement concerning the patient's decision making capacity or the appropriate interpretation and application of the terms of an advance directive.

26:2H-63. Decision making under an advance directive
11. a. The attending physician, the health care representative and, when appropriate, any additional physician responsible for the patient's care, shall discuss the nature and consequences of the patient's medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives. Except as provided by subsection b. of this section, the attending physician shall obtain informed consent for, or refusal of, health care from the health care representative.

(1) Discussion of the proposed treatment and its alternatives shall include, as appropriate under the circumstances, the availability, benefits and burdens of rehabilitative treatment, therapy, and services.

(2) The decision making process shall allow, as appropriate under the circumstances, adequate time for the health care representative to understand and deliberate about all relevant information before a treatment decision is implemented.

b. Following a determination that a patient lacks decision making capacity, the health care representative and the attending physician shall, to a reasonable extent, discuss the treatment options with the patient, and seek to involve the patient as a participant in the decision making process. The health care representative and the attending physician shall seek to promote the patient's capacity for effective participation and shall take the patient's expressed wishes into account in the decision making process.

Once decision making authority has been conferred upon a health care representative pursuant to an advance directive, if the patient is subsequently found to possess adequate decision making capacity with respect to a particular health care decision, the patient shall retain legal authority to make that decision. In such circumstances, the health care representative may continue to participate in the decision making process in an advisory capacity, unless the patient objects.

Notwithstanding any other provision of this act to the contrary, if a patient who lacks decision making capacity clearly expresses or manifests the contemporaneous wish that medically appropriate measures utilized to sustain life be provided, that wish shall take precedence over any contrary decision of the health care representative and any contrary statement in the patient's instruction directive.

c. In acting to implement a patient's wishes pursuant to an advance directive, the health care representative shall give priority to the patient's instruction directive, and may also consider, as appropriate and necessary, the following forms of evidence of the patient's wishes:

(1) The patient's contemporaneous expressions, including nonverbal expressions;

(2) Other reliable sources of information, including the health care representative's personal knowledge of the patient's values, preferences and goals; and

(3) Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care professionals or religious leaders.

d. If the instruction directive, in conjunction with other evidence of the patient's wishes, does not provide, in the exercise of reasonable judgment, clear direction as applied to the patient's medical condition and the treatment alternatives, the health care representative shall exercise reasonable discretion, in good faith, to effectuate the terms, intent, and spirit of the instruction directive and other evidence of the patient's wishes.

e. Subject to the provisions of this act, and unless otherwise stated in the advance directive, if the patient's wishes cannot be adequately determined, then the health care representative shall make a health care decision in the patient's best interests.

26:2H-60. Determination of patient's capacity to make a health care decision
8. a. The attending physician shall determine whether the patient lacks capacity to make a particular health care decision. The determination shall be stated in writing, shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity, and shall be made a part of the patient's medical records.

b. The attending physician's determination of a lack of decision making capacity shall be confirmed by one or more physicians. The opinion of the confirming physician shall be stated in writing and made a part of the patient's medical records in the same manner as that of the attending physician. Confirmation of a lack of decision making capacity is not required when the patient's lack of decision making capacity is clearly apparent, and the attending physician and the health care representative agree that confirmation is unnecessary.

c. If the attending physician or the confirming physician determines that a patient lacks decision making capacity because of a mental or psychological impairment or a developmental disability, and neither the attending physician or the confirming physician has specialized training or experience in diagnosing mental or psychological conditions or developmental disabilities of the same or similar nature, a determination of a lack of decision making capacity shall be confirmed by one or more physicians with appropriate specialized training or experience. The opinion of the confirming physician shall be stated in writing and made a part of the patient's medical records in the same manner as that of the attending physician.

d. A physician designated by the patient's advance directive as a health care representative shall not make or confirm the determination of a lack of decision making capacity.

e. The attending physician shall inform the patient, if the patient has any ability to comprehend that he has been determined to lack decision making capacity, and the health care representative that: (1) the patient has been determined to lack decision making capacity to make a particular health care decision; (2) each has the right to contest this determination; and (3) each may have recourse to the dispute resolution process established by the health care institution pursuant to section 14 of this act.

Notice to the patient and the health care representative shall be documented in the patient's medical records.

f. A determination of lack of decision making capacity under this act is solely for the purpose of implementing an advance directive in accordance with the provisions of this act, and shall not be construed as a determination of a patient's incapacity or incompetence for any other purpose.

g. For purposes of this section, a determination that a patient lacks decision making capacity shall be based upon, but need not be limited to, evaluation of the patient's ability to understand and appreciate the nature and consequences of a particular health care decision, including the benefits and risks of, and alternatives to, the proposed health care, and to reach an informed decision.

26:2H-61. Authority to make health care decisions
9. a. If it has been determined that the patient lacks decision making capacity, a health care representative shall have authority to make health care decisions on behalf of the patient. The health care representative shall act in good faith and within the bounds of the authority granted by the advance directive and by this act.

b. If a different individual has been appointed as the patient's legal guardian, the health care representative shall retain legal authority to make health care decisions on the patient's behalf, unless the terms of the legal guardian's court appointment or other court decree provide otherwise.

c. The conferral of legal authority on the health care representative shall not be construed to impose liability upon the health care representative for any portion of the patient's health care costs.

d. An individual designated as a health care representative or as an alternate health care representative may decline to serve in that capacity.

e. The health care representative shall exercise the patient's right to be informed of the patient's medical condition, prognosis and treatment options, and to give informed consent to, or refusal of, health care.

f. In the exercise of these rights and responsibilities, the health care representative shall seek to make the health care decision the patient would have made had he possessed decision making capacity under the circumstances, or, when the patient's wishes cannot adequately be determined, shall make a health care decision in the best interests of the patient.

26:2H-62. Rights, responsibilities of health care professionals
10. In addition to any rights and responsibilities recognized or imposed by, or pursuant to, this act, or by any other law, physicians, nurses, and other health care professionals shall have the following rights and responsibilities:

a. The attending physician shall make an affirmative inquiry of the patient, his family or others, as appropriate under the circumstances, concerning the existence of an advance directive. The attending physician shall note in the patient's medical records whether or not an advance directive exists, and the name of the patient's health care representative, if any, and shall attach a copy of the advance directive to the patient's medical records. The attending physician shall document in the same manner the reaffirmation, modification, or revocation of an advance directive, if he has knowledge of such action.

b. A physician may decline to participate in the withholding or withdrawing of measures utilized to sustain life, in accordance with his sincerely held personal or professional convictions. In such circumstances, the physician shall act in good faith to inform the patient and the health care representative, and the chief of the medical staff or other designated institutional official, of this decision as soon as practicable, to effect an appropriate, respectful and timely transfer of care, and to assure that the patient is not abandoned or treated disrespectfully.

In the event of transfer of a patient's care, the attending physician shall assure the timely transfer of the patient's medical records, including a copy of the patient's advance directive.

c. A nurse or other health care professional may decline to participate in the withholding or withdrawing of measures utilized to sustain life, in accordance with his sincerely held personal or professional convictions. In these circumstances, the nurse or other health care professional shall act in good faith to inform the patient and the health care representative, and the head of the nursing or other professional staff or other designated institutional official, of this decision as soon as practicable, to cooperate in effecting an appropriate, respectful and timely transfer of care, and to assure that the patient is not abandoned or treated disrespectfully.

d. Nothing in this act shall be construed to require a physician, nurse or other health care professional to begin, continue, withhold, or withdraw health care in a manner contrary to law or accepted professional standards.

26:2H-56. Advance directive for health care; execution
4. A declarant may execute an advance directive for health care at any time. The advance directive shall be signed and dated by, or at the direction of, the declarant in the presence of two subscribing adult witnesses, who shall attest that the declarant is of sound mind and free of duress and undue influence. A designated health care representative shall not act as a witness to the execution of an advance directive. Alternatively, the advance directive shall be signed and dated by, or at the direction of, the declarant and be acknowledged by the declarant before a notary public, attorney at law, or other person authorized to administer oaths. An advance directive may be supplemented by a video or audio tape recording. A female declarant may include in an advance directive executed by her, information as to what effect the advance directive shall have if she is pregnant.

26:2H-57 Proxy, instruction directive; reaffirmed, modified, revoked.

5. a. A declarant may reaffirm or modify either a proxy directive, or an instruction directive, or both. The reaffirmation or modification shall be made in accordance with the requirements for execution of an advance directive pursuant to section 4 of this act.

b.A declarant may revoke an advance directive, including a proxy directive, or an instruction directive, or both, by the following means:

(1)Notification, orally or in writing, to the health care representative, physician, nurse or other health care professional, or other reliable witness, or by any other act evidencing an intent to revoke the document; or

(2)Execution of a subsequent proxy directive or instruction directive, or both, in accordance with section 4 of this act.

c.Designation of the declarant's spouse as health care representative shall be revoked upon divorce or legal separation, and designation of the declarant's domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3) as health care representative shall be revoked upon termination of the declarant's domestic partnership, unless otherwise specified in the advance directive.

d.An incompetent patient may suspend an advance directive, including a proxy directive, an instruction directive, or both, by any of the means stated in paragraph (1) of subsection b. of this section. An incompetent patient who has suspended an advance directive may reinstate that advance directive by oral or written notification to the health care representative, physician, nurse or other health care professional of an intent to reinstate the advance directive.

e.Reaffirmation, modification, revocation or suspension of an advance directive is effective upon communication to any person capable of transmitting the information including the health care representative, the attending physician, nurse or other health care professional responsible for the patient's care.

26:2H-58 Designation of health care representative; limitations.

6. a. A declarant may execute a proxy directive, pursuant to the requirements of section 4 of this act, designating a competent adult to act as his health care representative.

(1)A competent adult, including, but not limited to, a declarant's spouse, domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3), adult child, parent or other family member, friend, religious or spiritual advisor, or other person of the declarant's choosing, may be designated as a health care representative.

(2)An operator, administrator or employee of a health care institution in which the declarant is a patient or resident shall not serve as the declarant's health care representative unless the operator, administrator or employee is related to the declarant by blood, marriage, domestic partnership or adoption.

This restriction does not apply to a physician, if the physician does not serve as the patient's attending physician and the patient's health care representative at the same time.

(3)A declarant may designate one or more alternate health care representatives, listed in order of priority. In the event the primary designee is unavailable, unable or unwilling to serve as health care representative, or is disqualified from such service pursuant to this section or any other law, the next designated alternate shall serve as health care representative. In the event the primary designee subsequently becomes available and able to serve as health care representative, the primary designee may, insofar as then practicable, serve as health care representative.

(4)A declarant may direct the health care representative to consult with specified individuals, including alternate designees, family members and friends, in the course of the decision making process.

(5)A declarant shall state the limitations, if any, to be placed upon the authority of the health care representative including the limitations, if any, which may be applicable if the declarant is pregnant.

b.A declarant may execute an instruction directive, pursuant to the requirements of section 4 of this act, stating the declarant's general treatment philosophy and objectives; or the declarant's specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment; or both. An instruction directive may, but need not, be executed contemporaneously with, or be attached to, a proxy directive.

26:2H-59. Conditions under which advance directive becomes operative
7. a. An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to section 8 of this act that the patient lacks capacity to make a particular health care decision.

b. Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish, and where appropriate confirm, a reliable diagnosis and prognosis for the patient.

26:2H-55. Definitions
3. As used in this act:



"Adult" means an individual 18 years of age or older.



"Advance directive for health care" or "advance directive" means a writing executed in accordance with the requirements of this act. An "advance directive" may include a proxy directive or an instruction directive, or both.

"Attending physician" means the physician selected by, or assigned to, the patient who has primary responsibility for the treatment and care of the patient.

"Decision making capacity" means a patient's ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of each, and alternatives to any proposed health care, and to reach an informed decision. A patient's decision making capacity is evaluated relative to the demands of a particular health care decision.

"Declarant" means a competent adult who executes an advance directive.



"Do not resuscitate order" means a physician's written order not to attempt cardiopulmonary resuscitation in the event the patient suffers a cardiac or respiratory arrest.

"Emergency care" means immediate treatment provided in response to a sudden, acute and unanticipated medical crisis in order to avoid injury, impairment or death.

"Health care decision" means a decision to accept or to refuse any treatment, service or procedure used to diagnose, treat or care for a patient's physical or mental condition, including life-sustaining treatment. "Health care decision" also means a decision to accept or to refuse the services of a particular physician, nurse, other health care professional or health care institution, including a decision to accept or to refuse a transfer of care.

"Health care institution" means all institutions, facilities, and agencies licensed, certified, or otherwise authorized by State law to administer health care in the ordinary course of business, including hospitals, nursing homes, residential health care facilities, home health care agencies, hospice programs operating in this State, mental health institutions, facilities or agencies, or institutions, facilities and agencies for the developmentally disabled. The term "health care institution" shall not be construed to include "health care professionals" as defined in this act.

"Health care professional" means an individual licensed by this State to administer health care in the ordinary course of business or practice of a profession.

"Health care representative" means the individual designated by a declarant pursuant to the proxy directive part of an advance directive for the purpose of making health care decisions on the declarant's behalf, and includes an individual designated as an alternate health care representative who is acting as the declarant's health care representative in accordance with the terms and order of priority stated in an advance directive.

"Instruction directive" means a writing which provides instructions and direction regarding the declarant's wishes for health care in the event that the declarant subsequently lacks decision making capacity.

"Life-sustaining treatment" means the use of any medical device or procedure, artificially provided fluids and nutrition, drugs, surgery or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function, and thereby increase the expected life span of a patient.

"Other health care professionals" means health care professionals other than physicians and nurses.

"Patient" means an individual who is under the care of a physician, nurse or other health care professional.

"Permanently unconscious" means a medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term "permanently unconscious" includes without limitation a persistent vegetative state or irreversible coma.

"Physician" means an individual licensed to practice medicine and surgery in this State.

"Proxy directive" means a writing which designates a health care representative in the event the declarant subsequently lacks decision making capacity.

"State" means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

"Terminal condition" means the terminal stage of an irreversibly fatal illness, disease or condition. A determination of a specific life expectancy is not required as a precondition for a diagnosis of a "terminal condition," but a prognosis of a life expectancy of six months or less, with or without the provision of life-sustaining treatment, based upon reasonable medical certainty, shall be deemed to constitute a terminal condition.

26:2H-55. Definitions
3. As used in this act:



"Adult" means an individual 18 years of age or older.



"Advance directive for health care" or "advance directive" means a writing executed in accordance with the requirements of this act. An "advance directive" may include a proxy directive or an instruction directive, or both.

"Attending physician" means the physician selected by, or assigned to, the patient who has primary responsibility for the treatment and care of the patient.

"Decision making capacity" means a patient's ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of each, and alternatives to any proposed health care, and to reach an informed decision. A patient's decision making capacity is evaluated relative to the demands of a particular health care decision.

"Declarant" means a competent adult who executes an advance directive.



"Do not resuscitate order" means a physician's written order not to attempt cardiopulmonary resuscitation in the event the patient suffers a cardiac or respiratory arrest.

"Emergency care" means immediate treatment provided in response to a sudden, acute and unanticipated medical crisis in order to avoid injury, impairment or death.

"Health care decision" means a decision to accept or to refuse any treatment, service or procedure used to diagnose, treat or care for a patient's physical or mental condition, including life-sustaining treatment. "Health care decision" also means a decision to accept or to refuse the services of a particular physician, nurse, other health care professional or health care institution, including a decision to accept or to refuse a transfer of care.

"Health care institution" means all institutions, facilities, and agencies licensed, certified, or otherwise authorized by State law to administer health care in the ordinary course of business, including hospitals, nursing homes, residential health care facilities, home health care agencies, hospice programs operating in this State, mental health institutions, facilities or agencies, or institutions, facilities and agencies for the developmentally disabled. The term "health care institution" shall not be construed to include "health care professionals" as defined in this act.

"Health care professional" means an individual licensed by this State to administer health care in the ordinary course of business or practice of a profession.

"Health care representative" means the individual designated by a declarant pursuant to the proxy directive part of an advance directive for the purpose of making health care decisions on the declarant's behalf, and includes an individual designated as an alternate health care representative who is acting as the declarant's health care representative in accordance with the terms and order of priority stated in an advance directive.

"Instruction directive" means a writing which provides instructions and direction regarding the declarant's wishes for health care in the event that the declarant subsequently lacks decision making capacity.

"Life-sustaining treatment" means the use of any medical device or procedure, artificially provided fluids and nutrition, drugs, surgery or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function, and thereby increase the expected life span of a patient.

"Other health care professionals" means health care professionals other than physicians and nurses.

"Patient" means an individual who is under the care of a physician, nurse or other health care professional.

"Permanently unconscious" means a medical condition that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term "permanently unconscious" includes without limitation a persistent vegetative state or irreversible coma.

"Physician" means an individual licensed to practice medicine and surgery in this State.

"Proxy directive" means a writing which designates a health care representative in the event the declarant subsequently lacks decision making capacity.

"State" means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

"Terminal condition" means the terminal stage of an irreversibly fatal illness, disease or condition. A determination of a specific life expectancy is not required as a precondition for a diagnosis of a "terminal condition," but a prognosis of a life expectancy of six months or less, with or without the provision of life-sustaining treatment, based upon reasonable medical certainty, shall be deemed to constitute a terminal condition.