1 See In re Welfare of Bowman, 617 P.2d 731, 734 (Wash. 1980) (citing Thomas McCormick, Lecture on Judicial Decisions and Biomedical Ethics at the University of Washington School of Medicine (Apr. 30, 1980) (name misspelled McCormack in original)) (“With the recent advancement of medical science, the traditional common law ‘heart and lungs’ definition is no longer adequate. Some of the specific factors compelling a more refined definition are: (1) modern medicine's technological ability to sustain life in the absence of spontaneous heartbeat or respiration, (2) the advent of successful organ transplantation capabilities which creates a demand for viable organs from recently deceased donors, (3) the enormous expenditure of resources potentially wasted if persons in fact dead are being treated medically as though they were alive, and (4) the need for a precise time of death so that persons who have died may be treated appropriately.”).

2 Boucek, Mark M. et al., Pediatric Heart Transplantation After Declaration of Cardiocirculatory Death, 359 New Eng. J. Med. 709, 713 (2008).CrossRefGoogle ScholarPubMed

3 See D. Alan Shewmon, Brain Death: Can It Be Resuscitated?, Hastings Center Rep., Mar.-Apr. 2009, at 18, 22 [hereinafter Shewmon, Resuscitated]; D. Alan Shewmon, The Brain and Somatic Integration: Insights into the Standard Biological Rationale for Equating “Brain Death” with Death, 26 J. Med. & Phil. 457, 468 (2001) [hereinafter Shewmon, Somatic Integration].

4 See, e.g., Jan Bondenson, Buried Alive 31-32 (Norton 2002) (explaining that people's fears of being buried alive, or “taphophobia,” rose significantly when cholera epidemics in Europe made it important to bury people very soon after the determination of death); UNUM Life Ins. Co. of Am. v. Craig, 26 P.3d 510, 512 (Ariz. 2001) (consulting the Uniform Simultaneous Death Act (USDA), which is “a uniform statute originally drafted to apply in circumstances resulting in multiple related deaths where it is not possible to determine the order in which the deaths occurred,” to determine the beneficiary of insurance policies when a husband and wife were found to have died simultaneously in a car crash).

5 People v. Eulo, 472 N.E.2d 286, 290 n.1 (N.Y. 1984), superseded by statute, N.Y. Public Health Law §§ 2964-67 (McKinney 2010), as recognized in In re Westchester Cnty. Med. Ctr., 531 N.E.2d 607, 611-12 n.2 (1988)) (“[W]hile erecting death as a critical milepost in a person's legal life, the law has had little occasion to consider the precise point at which a person ceases to live.”).

6 Id. at 290.

7 Id. at 290-91.

8 The President's Council on Bioethics, Controversies in the Determination of Death 8 (2008), http://bioethics.georgetown.edu/pcbe/reports/death/.

9 Unif. Anatomical Gift Act § 2(3) (amended 2006), 8A U.L.A. 53 (supp. 2010) (defining an anatomical gift as “a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education” (emphasis added)); Harrington, Maxine M., The Thin Flat Line: Redefining Who Is Legally Dead in Organ Donation After Cardiac Death, 25 Issues L. & Med. 95, 113Google Scholar (citing Robert M. Arnold & Stuart J. Youngner, The Dead Donor Rule: Should We Stretch It, Bend It, or Abandon It?, in Procuring Organs for Transplant, The Debate Over Non-Heart-Beating Cadaver Protocols 219, 220-21 (Robert M. Arnold et al. eds., 1995)).

10 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40 (1968).CrossRefGoogle Scholar

11 Id. at 337.

12 Task Force on Death and Dying, Inst. of Soc’y, Ethics and the Life Scis., Refinements in Criteria for the Determination of Death: An Appraisal, 221 JAMA 48, 51 (1972).CrossRefGoogle Scholar

13 Veatch, Robert M., Abandon the Dead Donor Rule or Change the Definition of Death?, 14 Kennedy Inst. Ethics J. 261, 267 (2004).CrossRefGoogle ScholarPubMed

14 President's Comm’n for the Study of Ethical Problems in Medicine and Medical and Behavioral Research, Defining Death 38 (1981).

15 Id. at 33.

16 Id. at 1.

17 Unif. Determination of Death Act § 1, 12A U.L.A. 781 (2008).

18 Id.

19 Vital organs are organs that are necessary for life, like the heart. Importantly, the law permits organ donation of non-vital organs from living donors, including kidney donation. However, this form of organ donation is unlikely to meet the needs of many of the people who are on waiting lists for vital organs.

20 See Goldsmith, Jason L., Wanted! Dead and/or Alive: Choosing Among the Not-So-Uniform Statutory Definitions of Death, 61 U. Miami L. Rev. 871, 889-90 (2007).Google Scholar There are two notable exceptions of states that have made accommodations to neurological criteria for determining death for people with certain religious convictions—New York and New Jersey. New York's Department of Health issued regulations and guidance on the determination of death in 1987 and indicated the importance of “providing reasonable accommodation of an individual's religious or moral objection to use of the brain death standard to determine death.” See N.Y. State Dep't of Health, Guidelines for Determining Brain Death 2 (Dec. 2005), http://www.health.state.ny.us/professionals/doctors/guidelines/determination_of_brain_death/docs/determination_of_brain_death.pdf. In 2005, a panel appointed by the Department of Health clarified in guidelines what policies of reasonable accommodation hospitals may adopt. They explained that, “policies may include specific accommodations, such as the continuation of artificial respiration under certain circumstances.” Id. at 2-3. Interestingly enough, the panel explained that if a family disagrees with whole brain standard of death (or is in psychological denial that an individual is dead), the hospital does not need to accommodate these views; it need only allow for religious or moral views. Id. at 3; see also Olick, Robert S. et al., Accommodating Religious and Moral Objections to Neurological Death, 20 J. Clinical Ethics 183, 185-86 (2009)Google ScholarPubMed (noting that some members of the Orthodox Jewish faith, communities in Japan, Roman Catholicism, evangelical Protestantism, Islam, and Native American communities have rejected a neurological standard of death on religious or moral grounds).

New Jersey not only allows hospitals to reasonably accommodate individual views about death, but also requires that insurance coverage continue during the period of accommodation—i.e., after a person could be declared dead under the whole brain death standard. See N.J. Stat. Ann. § 26:6A-7 (West 2007) (“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 solely because of that individual's personal religious beliefs regarding the application of neurological criteria for declaring death.”).

21 Cf. Matheny Antommaria, Armand H. et al., Policies on Donation After Cardiac Death at Children's Hospitals: A Mixed-Methods Analysis of Variation, 301 JAMA 1902, 1902 (2009)CrossRefGoogle Scholar (“The persistent shortage of transplantable organs and requests from families generated renewed interest in DCD in the early 1990s.”).

22 See Steinbrook, Robert, Organ Donation After Cardiac Death, 357 New Eng. J. Med. 209, 209 (2007).CrossRefGoogle ScholarPubMed

23 Aulisio, Mark P. et al., Taking Values Seriously: Ethical Challenges in Organ Donation and Transplantation for Critical Care Professionals, 35 Critical Care Med. S95, S95 (2007).CrossRefGoogle ScholarPubMed

24 Verheijde, Joseph L., Rady, Mohamed Y. & McGregor, Joan, Recovery of Transplantable Organs After Cardiac or Circulatory Death: Transforming the Paradigm for the Ethics of Organ Donation, 2 Phil. Ethics & Human. Med., no. 8, May 2007 at 1, 1, http://www.pehmed.com/content/pdf/1747-5341-2-8.pdf.Google ScholarPubMed

25 Harrington, supra note 9, at 107-08 (citing Roger Herdman & John T. Potts, Inst. of Med., Non-Heart-Beating Organ Transplantation: Medical and Ethical Issues in Procurement 1 (1997), available at http://www.nap.edu/catalog.php?record_id=6036); see Bernat, James L. et al., The Circulatory-Respiratory Determination of Death in Organ Donation, 38 Critical Care Med. 963, 964 (2010).CrossRefGoogle ScholarPubMed

26 The heart's inability to cause a pulse or circulate blood is known as asystole. Electrocardiagraphic activity may continue after asystole without interfering with the determination of death. See Steinbrook, supra note 22, at 910.

27 See Don Marquis, Are DCD Donors Dead?, Hastings Center Rep., May-June 2010, at 24, 24.

28 See Steinbrook, supra note 22, at 210.

29 See id. at 211-12; see also United Network for Organ Sharing, Attachment III to Appendix B of the UNOS Bylaws: Model Elements for Controlled DCD Recovery Protocols, at 1 (Mar. 23, 2007), http://www.unos.org/docs/Appendix_B_AttachIII.pdf (noting that the next-of-kin may consent to procedures that assist with organ donations like heparin, regitine, femoral line placement, lymph node excision, ECMO, and bronchoscopy).

30 Steinbrook, supra note 22, at 209.

31 See id. at 211.

32 Revisions to Standard LD.3.110, Joint Commission Perspectives (Joint Comm’n on Accreditation of Healthcare Orgs.), June 2006, at 7 (2006).

33 See Comm. on Increasing Rates of Organ Donation, Inst. of Med., Organ Donation: Opportunities for Action 146 (James F. Childress & Catharyn T. Liverman eds., 2006).

34 Id. at 145-46.

35 Ethics Comm., American Coll. of Critical Care Med., Society of Critical Care Med., Recommendations for Nonheartbeating Organ Donation, 29 Critical Care Med. 1826, 1826-31 (2001)CrossRefGoogle Scholar; see also Bernat, J.L. et al., Report of a National Conference on Donation After Cardiac Death, 6 Am. J. Transplantation 281, 281-82 (2006).CrossRefGoogle ScholarPubMed

36 Ethics Comm., American Coll. of Critical Care Med., Society of Critical Care Med., supra note 35, at 1827.

37 See Boucek et al., supra note 2, at 711 (citing two instances in which donations were performed after an observation period of seventy-five seconds).

38 See, e.g., Hans Jonas, Against the Stream: Comments on the Definition and Redefinition of Death, in Philosophical Essays 132 (1974).

39 See The President's Council on Bioethics, supra note 8, at 8.

40 Shewmon, Somatic Integration, supra note 3, at 468.

41 E.g., R. Alta Charo, Dusk, Dawn, and Defining Death: Legal Classifications and Biological Categories, in The Definition of Death: Contemporary Controversies 277 (Stuart J. Youngner, Robert M. Arnold & Renie Schapiro eds., 1999).

42 Unif. Determination of Death Act § 1, 12A U.L.A. 781 (2008).

43 Shewmon, Somatic Integration, supra note 3, at 467-68.

44 Powner, David J. & Bernstein, Ira M., Extended Somatic Support for Pregnant Women After Brain Death, 31 Critical Care Med. 1241, 1241-42 (2003).CrossRefGoogle ScholarPubMed

45 Id.; see also Souza, João P. et al., The Prolongation of Somatic Support in a Pregnant Woman with Brain-Death: A Case Report, 3 Reproductive Health, no. 3, Apr. 2006CrossRefGoogle Scholar at 1, http://www.reproductive-health-journal.com/content/3/1/3; Yeung, Patrick Jr., McManus, Christopher & Tchabo, Jean-Gilles, Extended Somatic Support for a Pregnant Woman with Brain Death from Metastatic Malignant Melanoma: A Case Report, 21 J. Maternal-Fetal & Neonatal Med. 509 (2008).CrossRefGoogle ScholarPubMed

46 Shewmon, Somatic Integration, supra note 3, at 470-71.

47 Somatic integration simply means some coordination of organ function so the body works together as a whole. See id. at 458.

48 Id. at 466.

49 The President's Council on Bioethics, supra note 8, at 40.

50 The Council qualifies its definition of total brain failure by explaining that it does not preclude the existence of islands of brain tissue that may be damaged but not completely deteriorated. Additionally, some functionality is retained in some patients diagnosed with “brain death”—they continue to secrete anti-diuretic hormone, a process that is mediated by the brain. Id. at 37-38. Thus, even in the relatively uncontroversial part of interpreting whether a patient has irreversible cessation of neurological functions, there remains some, perhaps very minimal, brain function. This might be a fudging of the law, or a way that the procedural component of the law (i.e., that physicians are to make the determination of death in accordance with accepted medical standards) interprets the law slightly differently than the strict meaning of the language would suggest. Notably, this is different from the question of whether whole brain death can be considered death. That is not a fudge, but an outright fiction.

51 Notably, they explain elsewhere that if total brain failure cannot support a definition of death, they would not endorse abandoning the dead donor rule and allowing organ transplantation to proceed. Id. at 12. They also explain that total brain failure does not necessarily mean complete failure—there may yet be isolated parts of the brain that function. They claim that the relevant question, however, is the following: “Is the organism as a whole still present?” Id. at 37-38.

52 Id. at 58; cf. id. at 95 (Personal Statement of Alfonso Gomez-Lobo, Dr. Phil) (acknowledging the majority position but supporting the first position).

53 Id. at 60.

54 Id. at 61.

55 Id. at 64-65.

56 Shewmon, Resuscitated, supra note 3, at 20.

57 The President's Council on Bioethics, supra note 8, at 56.

58 Shewmon, Resuscitated, supra note 3, at 22.

59 The President's Council on Bioethics, supra note 8, at 29-30.

60 Id. at 64-65.

61 Id. at 50.

62 See Miller, Franklin G. & Truog, Robert D., The Incoherence of Determining Death by Neurological Criteria: A Commentary on Controversies in the Determination of Death, A White Paper by the President's Council on Bioethics, 19 Kennedy Inst. Ethics J. 185, 187-88 (2009).CrossRefGoogle Scholar

63 Halevy, Amir, Beyond Brain Death?, 26 J. Med. & Phil. 493, 496 (2001).CrossRefGoogle ScholarPubMed

64 Rady, Mohamed Y. et al., “Non-Heart-Beating,” or “Cardiac Death,” Organ Donation: Why We Should Care, 2 J. Hosp. Med. 324, 332 (2007).CrossRefGoogle ScholarPubMed

65 Harrington, supra note 9, at 127-29.

66 de Groot, Yorick J. & Kompanje, Erwin J. O., Letter to the Editor, Policies of Children's Hospitals on Donation After Cardiac Death, 302 JAMA 844, 844 (2009)CrossRefGoogle ScholarPubMed; see also Machado, Calixto & Korein, Julius, Irreversibility: Cardiac Death Versus Brain Death, 20 Revs. Neurosciences 199, 201 (2009)Google ScholarPubMed (“[T]he cardiorespiratory definition of death does not assure irreversibility, because CPR, extracorporeal circulation, etc., allow recovery of heartbeat after prolonged periods of asystole.”).

67 Evans, David Wainwright, Seeking an Ethical and Legal Way of Procuring Transplantable Organs from the Dying Without Further Attempts to Redefine Human Death, 2 Phil. Ethics & Human. Med., no. 11, June 2007 at 2, http://www.pehmed.com/content/pdf/1747-5341-2-11.pdf.Google ScholarPubMed

68 Hornby, K., Hornby, L. & Shemie, S. D., A Systematic Review of Autoresuscitation After Cardiac Arrest, 38 Critical Care Med. 1246, 1248 (2010).CrossRefGoogle ScholarPubMed

69 Id.

70 Id.

71 Downie, Jocelyn et al., Eligibility for Organ Donation: A Medico-legal Perspective on Defining and Determining Death, 56 Canadian J. Anesthesia 851, 858 (2009)CrossRefGoogle ScholarPubMed; Adhiyaman, Vedamurthy et al., The Lazarus Phenomenon, 100 J. Royal Soc’y Med. 552, 552 (2007)CrossRefGoogle ScholarPubMed (defining the Lazarus Phenomenon as “delayed return of spontaneous circulation (ROSC) after cessation of cardiopulmonary resuscitation (CPR)” and noting that it is a rare, but real, phenomenon).

72 Hornby, Hornby & Shemie, supra note 68, at 1248.

73 Id. at 1251 (“The existing data are of insufficient quality to support or refute the recommended waiting period to determine death after a cardiac arrest in the context of DCD.”).

74 See Veatch, Robert, Donating Hearts After Cardiac Death—Reversing the Irreversible, 359 New Eng. J. Med. 672, 672 (2008).CrossRefGoogle ScholarPubMed

75 Dan W. Brock, The Role of the Public in Public Policy on the Definition of Death, in The Definition of Death: Contemporary Controversies, supra note 41, at 293, 298.

76 E.g., Okla. Stat. Ann. tit. 63, § 3122 (West 2004) (“A determination of death must be made in accordance with accepted medical standards; provided however all reasonable attempts to restore spontaneous circulatory or respiratory functions shall first be made … .”) (emphasis added); Va. Code Ann. § 54.1-2972(A)(1) (2009) (“In the opinion of a physician duly authorized to practice medicine in this Commonwealth, based on the ordinary standards of medical practice, there is the absence of spontaneous respiratory and spontaneous cardiac functions and, because of the disease or condition which directly or indirectly caused these functions to cease, or because of the passage of time since these functions ceased, attempts at resuscitation would not, in the opinion of such physician, be successful in restoring spontaneous life-sustaining functions, and, in such event, death shall be deemed to have occurred at the time these functions ceased … .”) (emphasis added).

77 See, e.g., Finnegan v. Finnegan, No. FA074031514, 2008 Conn. Super. LEXIS 426, at *3 (Conn. Super. Ct. Feb. 19, 2008) (The court rejected the defendant's claim that because he had three heart attacks and was resuscitated each time, his marriage had ended by death. Referring to the state statute with language from the Uniform Definition of Death Act, the court found that “[t]he defendant's alleged ‘deaths’ were neither permanent nor irreversible.”); Jefferson Cnty. v. E. Idaho Reg’l Med. Ctr., 883 P.2d 1084, 1087 (Idaho Ct. App. 1994) (In a dispute over whether a county fund had to pay a hospital for resuscitation efforts on a particular indigent woman, the court concluded that a woman could not be declared dead by a layperson or by a posthumous review of her medical records, but only after resuscitative efforts had been tried and had failed.); People v. Selwa, 543 N.W.2d 321, 322-23 (Mich. Ct. App. 1995) (finding that a man was properly bonded for trial on a negligent homicide charge when a six and a half week old fetus was born without a heartbeat but was resuscitated and appeared to have lived for a few hours).

78 Huddle, Thomas, Schwartz, Michael A., Bailey, F. Amos & Bos, Michael A., Death, Organ Transplantation, and Medical Practice, 3 Phil. Ethics & Human. Med., no. 5, Feb. 2008Google ScholarPubMed at 1, 3, http://www.peh-med.com/content/pdf/1747-5341-3-5.pdf; Zamperetti, N., Defining Death in Non-Heart Beating Organ Donors, 29 J. Med. Ethics 182, 182 (2003).CrossRefGoogle ScholarPubMed

79 Marquis, supra note 27, at 27.

80 Brock, supra note 75, at 298-99; see Machado & Korein, supra note 66, at 200.

81 Bernat, James L., The Boundaries of Organ Donation After Circulatory Death, 359 New Eng. J. Med. 669, 670 (2008).CrossRefGoogle ScholarPubMed

82 Id. at 670-71.

83 Id.

84 Marquis, supra note 27, at 26.

85 Brian H. Bix, Law and Language: How Words Mislead Us, Reappointment Lecture to the Frederick W. Thomas Chair at the University of Minnesota 2 (Apr. 7, 2009), http://ssrn.com/abstract=1376366.

86 See Festinger, Leon & Carlsmith, James M., Cognitive Consequences of Forced Compliance, 58 J. Abnormal Soc. Psych. 203, 209 (1959)CrossRefGoogle ScholarPubMed (concluding that “[i]f a person is induced to do or say something which is contrary to his private opinion, there will be a tendency for him to change his opinion so as to bring it into correspondence with what he has done or said”).

87 See Frank, Jerome, What Courts Do in Fact, 26 Ill. L. Rev. 645, 655 (1931)Google Scholar (noting that judges arrive at their decisions by “hunches” that come from “[t]he effect of innumerable stimuli on what is loosely termed ‘the personality of the judge’”).

88 Lon Fuller, Legal Fictions (1967); see also Harmon, Louise, Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 Yale L. J. 1, 14-16 (1990).CrossRefGoogle ScholarPubMed

89 Fuller, supra note 88, at 9.

90 Id. at 12-14.

91 Id. at 92.

92 Bentham, Jeremy, The Collected Works of Jeremy Bentham: A Comment on the Commentaries and a Fragment of Government 509 (Burns, J.H. & Hart, H.L.A. eds., Oxford Univ. Press 1977)Google Scholar (1838) (describing a legal fiction as a “willful falsehood, having for its object the stealing legislative power, by and for hands, which could not, or durst not, openly claim it,—and, but for the delusion thus produced, could not exercise it”).

93 Fuller, supra note 88, at 90 (“In accordance with the notion that the legislator ‘commands’ or is ‘all-powerful,’ it is often assumed that if fictions are found in legislation they are to be construed as expository devices—mere conveniences of expression.”).

94 Louise Harmon, supra note 88, at 9 (citing J. Austin, Lecture on Jurisprudence or the Philosophy of Positive Law 308 (1874)).

95 As Fuller explains, “[t]he use of the word ‘fiction’ does not always imply that the author of the statement positively disbelieved it. It may rather imply the opinion that the author of the statement in question was (or would have been had he seen its full implication) aware of its inadequacy or partial untruth, although he may have believed it in the sense that he could think of no better way of expressing the idea he had in mind.” Fuller, supra note 88, at 8.

96 Smith, Peter J., New Legal Fictions, 95 Geo. L.J. 1435, 1437 (2007).Google Scholar

97 Id. at 1452-53, 1453 n.80.

98 Id. at 1453-54.

99 Knauer, Nancy J., Legal Fictions and Juristic Truth, 23 St. Thomas L. Rev. 1, 19-20 (2010).Google Scholar Some might conflate this discussion of legal fictions with the more fundamental legal realist critiques that the way we understand the process and procedures of making law is fictitious. This confusion may arise from the fact that Lon Fuller was an early legal realist who contributed a great deal to our understanding of legal fictions. Kuckes, Niki, The Useful, Dangerous Fiction of Grand Jury Independence, 41 Am. Crim. L. Rev. 1, 5 (2004)Google Scholar (citing Fuller, Lon L., American Legal Realism, 82 U. Pa. L. Rev. 429, 443 & n.31 (1934))Google Scholar (noting that Lon Fuller was one of the early realists). However, legal fictions should be understood as heuristic devices that transparently extend the law. Because of their transparency, they are distinct from the practices that legal realists seek to understand, like the notion that judges merely find the facts and apply the law to them. Cf. Frank, supra note 87, at 655 (describing the influence of “the personality of the judge”).

Two commentators have developed the beginnings of a typology for legal fictions. See, e.g., Smith, supra note 96, at 1437; Note, Lessons From Abroad: Mathematical, Poetic, and Literary Fictions in the Law, 115 Harv. L. Rev. 2228, 2240-44 (2002).CrossRefGoogle Scholar Others have made some helpful distinctions about types of fictions and the harms of using them. Barnet, Todd, Legal Fiction and Forfeiture: An Historical Analysis of the Civil Asset Forfeiture Reform Act, 40 Duq. L. Rev. 77, 81-84 (2001)Google Scholar. The important work that remains to be done is the development of a thorough typology of the different types of heuristic devices employed by different legal fictions and the advantages and disadvantages of different categories of fictions.

100 Charo, supra note 41, at 277.

101 President's Comm’n for the Study of Ethical Problems in Medicine and Medical and Behavioral Research, supra note 14, at 31.

102 The President's Council on Bioethics, supra note 8, at 50; id. at 103 (Personal Statement of Gilbert C. Meilaender).

103 See supra Part II.A.

104 Mutcherson, Kimberly M., Whose Body Is It Anyway? An Updated Model of Healthcare Decision-making Rights for Adolescents, 14 Cornell J.L. & Pub. Pol’y 251, 256 (2005).Google ScholarPubMed

105 The distinctions between rules and standards are well-covered in the literature. In general, rules are easier and less costly to apply. See Posner, Erik A., Standards, Rules, and Social Norms, 21 Harv. J.L. & Pub. Pol’y 101, 102-03 (1997)Google Scholar (explaining that “a person can more cheaply inform himself of a rule than inform himself of a standard … given that the person (or his lawyer) merely consults the legislative code in order to determine the content of a rule, whereas he would have to study and interpret a body of case law in order to predict how a court would apply a standard”).

106 Id.

107 Olick et al., supra note 20, at 183.

108 See supra Part II.A.

109 Surprisingly enough, treating people who are not dead as if they were dead has some precedent. The historic use of “civil death” was the way that European countries once decided how to treat ex-convicts, and was also used in the United States to a lesser degree. Someone who had been convicted of a serious offense was treated as if he had died and was no longer a member of society. In fact, “until the 1960s consequences of criminal convictions in the United States included the automatic dissolution of marriage, the denial of licenses ranging from employment to fishing permits, and the inability to enter into contracts or to engage in civil litigation.” Demleitner, Nora V., Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 Stan. L. & Pol’y Rev. 153, 154-55 (1999).Google Scholar It is not clear whether the fact that people who have been convicted of felonies still lose the right to vote is a holdover from this now antiquated legal fiction.

110 Marquis, supra note 27, at 25, 30.

111 Importantly, these patients might not be treated as dead in a detrimental way, as we explain infra Part V.A.

112 Combs v. Int’l Ins. Co., 354 F.3d 568, 599 (6th Cir. 2004) (“[I]t has always been the law that where a party deliberately incapacitates himself or renders performance of his contract impossible, his act amounts to an injury to the other party, which gives the other party a cause of action for breach of contract.” (quoting Roehm v. Horst, 178 U.S. 1, 18 (1900))); Wis. Power & Light Co. v. Century Indem. Co., 130 F.3d 787, 793 (7th Cir. 1997) (“The disclaimer of a contractual duty is a breach of contract even if the time specified in the contract for performing the duty has not yet arrived. It is what is called anticipatory breach.”).

113 Munsell, Michael G., The Declaratory Judgment Act's Actual Controversy Requirement: Should a Patent Owner's Promise Not to Sue Deprive the Court of Jurisdiction?: Super Sack Mfg. Corp. v. Chase Packaging Corp., 62 Mo. L. Rev. 573, 580-82 (1997)Google Scholar (citing Air-vend, Inc. v. Thorne Indus., Inc. 625 F. Supp. 1123, 1125 (D. Minn. 1985), aff’d, 831 F.2d 306 (Fed. Cir. 1987) (unpublished opinion)).

114 Machado & Korein, supra note 66, at 201.

115 Sanchez-Fructuouso, Ana L. et al., Victims of Cardiac Arrest Occurring Outside the Hospital: A Source of Transplantable Kidneys, 145 Ann. Int. Med. 157, 157 (2006).CrossRefGoogle Scholar

116 Alex M. Capron, The Bifurcated Legal Standard of Determining Death: Does It Work?, in The Definition of Death: Contemporary Controversies, supra note 41, at 117, 130.

117 See, e.g., Mayo Clinic Staff, Organ Donation: Don't Let These Myths Confuse You, MayoClinic.Com (Apr. 3, 2010), http://www.mayoclinic.com/health/organ-donation/FL00077 (conflating a false determination of death with the possibility of being restored to a fully functioning life).

118 Katherine Thomson, Natasha Richardson Brain Dead, Family Gathered (Update: She Has Died), Huffington Post (Mar. 17, 2009, 11:00 PM), http://www.huffingtonpost.com/2009/03/17/natasha-richardson-brain_n_175764.html.

119 An individual with PVS is in a state of unconsciousness that has persisted for some time, where the chance of returning to a conscious state is deemed highly unlikely. However, whether individuals with PVS truly lack awareness has recently come under scrutiny, as will be discussed supra in Part IV.A.

120 Siminoff, Laura A., Burant, Christopher & Youngner, Stuart J., Death and Organ Procurement: Public Beliefs and Attitudes, 59 Soc. Sci. & Med. 2325, 2332 (2004).CrossRefGoogle ScholarPubMed

121 President's Council on Bioethics, supra note 8, at 12 (“If indeed it is the case that there is no solid scientific or philosophical rationale for the current ‘whole brain standard,’ then the only ethical course is to stop procuring organs from heart-beating individuals. Organ transplantation could continue, but with exclusive reliance on donors whose death is determined by the cardiopulmonary standard under a controlled DCD protocol … .”). Notably, we have argued that controlled DCDD as currently practiced also involves a legal fiction.

122 The higher brain standard is also problematic because there is reason to doubt consciousness is seated in the neocortex, which suggests that a conscious individual could be declared dead under the higher brain standard. See Machado & Korein, supra note 66, at 200-01.

123 1 Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others 31-64 (1984) (defining a “harm” as a setback to the interests of a person or being). This four volume treatise provides a widely-cited and influential account of harm to individuals. However, Feinberg's account of harm has been subject to some criticism. As David Shoemaker notes, although this account has been criticized for not establishing the necessary conditions for harm, even these critics recognize that Feinberg's criteria are sufficient to establish harm. Shoemaker, David W., “Dirty Words” and the Offense Principle, 19 L. & Phil. 545, 547 n.5 (2000).Google Scholar Those who favor another conception of harm may need to apply alternative conceptions to the analysis of whether a “brain dead” person or a person who has decided to withdraw therapy can be harmed or wronged.

124 See, e.g., Miller & Truog, supra note 62, at 188-90; Miller, Franklin G., Death and Organ Donation: Back to the Future, 35 J. Med. Ethics 616, 618-19 (2009).CrossRefGoogle ScholarPubMed

125 David DeGrazia, The Definition of Death, Stanford Encyclopedia of Philosophy (Oct. 26, 2007), http://plato.stanford.edu/entries/death-definition/.

126 Monti, Martin M. et al., Willful Modulation of Brain Activity in Disorders of Consciousness, 362 New Eng. J. Med. 579 (2010).CrossRefGoogle ScholarPubMed PVS patients were asked questions and asked to visualize themselves engaged in a motor activity like swinging a tennis racket or in a spatial activity like walking around observing objects in a room. Patients would indicate a yes or no response to the questions asked by visualizing either the motor activity or the spatial activity. Functional Magnetic Resonance Imaging (fMRI) was used to see which areas of the brain were activated in response to a series of yes or no questions. Five patients appeared to get the answers right to a series of personal questions.

127 Machado & Korein, supra note 66, at 201.

128 Is the dead donor rule itself a legal fiction? From one point of view, the answer is yes. As applied, the dead donor rule takes on the color of a legal fiction because the underlying determination of death rests on fictions. From another standpoint, however, the dead donor rule simply places constraints on what physicians can and cannot do. The determination of when death occurs is found elsewhere in the law and happens to involve legal fictions. Similarly, a statute that places constraints on the campaign donations of persons is not fictitious, even though the fiction that a corporation is a person under the eyes of the law means that the statute will apply to corporations and generate a fictive outcome. Nothing much depends on whether we conceive of the dead donor rule as a second-order legal fiction or whether we think of the underlying determinations of death as legal fictions. For this reason, and because we have found analyzing the different legal fictions involved in the determinations of death to more directly take us to conceptually rich issues, we have not considered the dead donor rule to be a legal fiction in this Article.

129 U.S. Dep't of Health & Human Servs., Organ Procurement & Transplantation Network, Deceased Donor Transplants in U.S. by State, http://optn.transplant.hrsa.gov/latestData/step2.asp (Step 1: Transplant; Step 2: Deceased Donor Transplants by State) (last visited Oct. 13, 2010).

130 Franklin G. Miller & Robert D. Truog, Rethinking the Ethics of Vital Organ Donations, 38 Hastings Center Rep., Nov.-Dec. 2008, at 38, 41. To be valid, consent would have to include informing patients that this type of donation is not donation after death, because the whole brain criterion does not correspond to death. Here, we are again relying upon Feinberg's account that a harm sets back a person's interests. See Feinberg, supra note 123.

131 Gary Greenberg, As Good as Dead, New Yorker, Aug. 13, 2001, http://www.newyorker.com/archive/2001/08/13/010813fa_FACT.

132 See generally Emanuel, Ezekiel J., The Future of Euthanasia and Physician-Assisted Suicide: Beyond Rights Talk to Informed Public Policy, 82 Minn. L. Rev. 983, 1003-10 (1998)Google ScholarPubMed (discussing benefits and dangers of physician-assisted suicide and euthanasia).

133 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 270 (1990).

134 Miller & Truog, supra note 130.

135 In re Quinlan, 355 A.2d 647, 670 (N.J. 1976).

136 Id.

137 Id. (citing Eisenstadt v. Baird, 405 U.S. 438, 445-46 (1972); Griswold v. Connecticut, 381 U.S. 479, 481 (1965)).

138 Abigail Alliance v. Von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007). One major concern about allowing a constitutional right to save one's life is that it may have many other implications—such as allowing patients to obtain access to experimental drugs with highly uncertain safety and efficacy and with minimal oversight—and the courts have rightly been cautious about expanding fundamental constitutional rights for this reason. See Cooper, Richard M., Responding to Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 121 Harv. L. Rev. F. 31, 35 (2007)Google Scholar. Though there might be a legitimate distinction between experimental therapy that has some unknown and likely low probability of prolonging life, and organ transplantation, which is known to save lives, judicial reluctance to expand the set of fundamental constitutional rights more generally suggests that this strategy is unlikely to succeed. See Abigail Alliance, 495 F.3d 695.

139 See McGregor, Joan et al., Do Donation After Cardiac Death Protocols Violate Criminal Homicide Statutes?, 27 Med. & L. 241, 245 (2008).Google ScholarPubMed Of course, lesser offenses might also be grounds for physician liability, such as third-degree murder, manslaughter, or battery.

140 Model Penal Code § 210.1(1) (2009).

141 State v. BeBee, 195 P.2d 746, 747 (Utah 1948) (murderer was still liable even though he had shot a dying victim).

142 Gina Kolata, Controversy Erupts over Organ Removals, N.Y. Times, Apr. 13, 1997, at A28 (explaining that the protocol included the administration of Heparin to prevent blood clotting and Regitine to widen blood vessels and increase blood flow to organs).

143 Harrington, supra note 9, at 108.

144 Unif. Law Comm’rs, A Few Facts About the Uniform Definition of Death Act, http://www.nccusl.org/nccusl/uniformact_factsheets/uniformacts-fs-udda.asp (last visited Oct. 11, 2010).

145 Unif. Definition of Death Act, 12A U.L.A. 779 prefatory note (2008).

146 Conferring immunity to physicians in this manner could also protect physicians from liability for lesser-included offenses like manslaughter or battery.

147 See, e.g., Cal. Penal Code § 187(b) (West, Westlaw through 2009 Legis. Sess.).

148 See id. § 196. This appears to be permitted either because it is considered a “lawful” killing, or because it is justifiable homicide when a public official acts to kill another “[i]n obedience to any judgment of a competent court.” Id.

149 Kolata, supra note 142 (explaining that the Cleveland Clinic contemplated revising their DCDD protocol and abandoned this proposal after a prosecutor began investigating the situation).

150 This approach may raise difficulties for the “check box” method of choosing to be an organ donor well in advance, such as when people make the choice to be an organ donor as they receive their drivers’ licenses. Unless there was sufficient public transparency about the nature of brain death, individuals would have to be given information about the choice they are making at the time they are asked.

151 Fuller, supra note 88, at 70.

152 Harmon, supra note 88, at 13.

153 See Dubois, James M. & Schmidt, Tracy, Does the Public Support Organ Donation Using Higher Brain-Death Criteria?, 14 J. Clinical Ethics 26, 33 (2003).Google ScholarPubMed

154 Again, consent for organ donation would have to be informed about the legal fiction operating in DCDD for such consent to be valid, and this may complicate the way that consent is currently obtained.

155 Shewmon, D. Alan, Recovery from “Brain Death”: A Neurologist's Apologia, 64 Linacre Q. 30, 42 (1997).CrossRefGoogle ScholarPubMed

156 There may be cases in which individuals have not previously expressed their preferences in writing through an advance directive, and it is not immediately apparent what the patient's preferences would be. Although states vary on whether surrogates, without evidence of the patient's wishes, should use the substituted judgment standard or best interests standard (or some combination of the two), the Uniform Health Care Decisions Act provides that a surrogate should make decisions based on the patient's instructions or expressed wishes. Barring that, the surrogate should consider the patient's best interests, which includes considering the patient's values. See Kohn, Nina A. & Blumenthal, Jeremy A., Designating Health Care Decisionmakers for Patients Without Advance Directives: A Psychological Critique, 42 Ga. L. Rev. 979, 986-87 (2008)Google Scholar. To the extent that our suggested approach relies heavily on the donor's consent to withdraw treatment and recover organs, it may require using relatively high evidentiary standards for surrogate decision-making based on the patient's values and preferences.

157 See Fuller, supra note 88, at 69-70.

158 Bix, supra note 85, at 20.

159 Harmon, supra note 88, at 63.

160 See id. at 63.

161 Citizens United v. Fed. Election Comm’n, 130 S.Ct. 876, 913 (2010).

162 See, e.g., Jeffrey Rosen, Roberts Versus Roberts, New Republic, Mar. 11, 2010, at 17; Ronald Dworkin, The “Devastating” Decision, N.Y. Review of Books (Feb. 25, 2010), http://www.nybooks.com/articles/archives/2010/feb/25/the-devastating-decision/; President Barack Obama, State of the Union Address (Jan. 10, 2010), available at http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address.

163 See Ruth Marcus, The High Court's Shoddy Scholarship, Wash. Post, Jan. 23, 2010, at A13 (with regard to the use of the legal fiction by the majority, stating only that “in the face of logic and history, the majority acted as if there could be no constitutional distinction between a corporation and a human being. Untrue. The Supreme Court has long held that corporations are considered ‘persons’ under the Constitution and are therefore entitled to its protections. For more than a century, Congress has barred corporations from making direct contributions to political candidates, with no suggestion that it must treat corporate persons the same as real ones; that prohibition stands, at least for now.”).

164 See Citizens United, 130 S. Ct. at 896-97, 899-900.

165 See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 804-05 (1978) (White, J., dissenting) (“[W]hat some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all furthered by corporate speech … . Shareholders in such entities do not share a common set of political or social views … .”).

166 Citizens United, 130 S. Ct. at 947-48 (Stevens, J., concurring in part and dissenting in part).

167 Id. at 908. How a corporation thinks, exactly, is not clear.

168 Bellotti, 435 U.S. at 804-05 (White, J., dissenting).

169 Brubaker, Ralph, Taking Exception to the New Corporate Discharge Exceptions, 13 Am. Bankr. Inst. L. Rev. 757, 759 (2005).Google Scholar

170 See supra Part II.A.

171 See supra Parts II.B, III.C.

172 See supra Part II.B.

173 See N.Y. State Dep't of Health, supra note 20.

174 See N.J. Stat. Ann. § 26:6A-7 (West 2007).

175 David Barstow, Lighting a Fuse for Rebellion on the Right, N.Y. Times, Feb. 16, 2010, at A1.