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Responsive Analysis: Public Health Federalism and Tort Reform in the U.S. Response to COVID-19
No full textLegal and Real-life Insights into Organ Donation in Georgia
No full textProfessor Emerita Sylvia Caley was the founding director of HeLP. Before GSU, she was an attorney with Atlanta Legal Aid and before that a registered nurse in organ transplantation. She was integral to Georgia having organ donation designated on individuals’ drivers’ licenses, testifying before the Health Committee of the Georgia House of Representatives. Professor Anjali Deshmukh is a health law professor and practicing pediatrician. In this lunch hour panel, they will discuss the history, medical procedure, legal authority, ethical concerns, equitable access and other challenges to organ transplant in the U.S. In addition, Morgan Cronin (J.D. ’23) will share her inspirational story of recently serving as a live organ donor for her brother who needed a liver transplant
A Negotiated Instrument: Proposing a Safer Contract for Consumers (And Not Just a Smarter One)
Get PDFIn this Article, I propose a new standard for determining what constitutes assent, as a matter of contract formation, within the domain of electronic consumer contracting. The threshold test should reject the “take-it-or-leave-it” arrangement dominant in the marketplace and reified by recent proposals before the American Law Institute (“ALI”) under the moniker “blanket assent.” The new standard should reject blanket assent in favor of a default rule that would require any electronic form proposing contract terms to permit at least a minimal amount of negotiation around terms seeking waiver of rights from consumers. I propose this rule as a more acceptable behavioral proxy in determining whether the manifestation of the mutual assent standard applicable to all contracts performed by competent contracting parties is met. Requiring negotiation and negotiability from electronic forms will go further than the current “click-through” baseline to cure the current problem of consumer incapacity widely recognized (though not widely named) in the consumer marketplace. It is that disturbingly debased status that defines the plight of the consumer in the modern consumer contracting domain (a point I make in a related, earlier piece). This Article argues that technology has advanced to such an extent that the absence of greater negotiability can no longer be defended with regard to electronic forms. As an example of this technology, I use the life of a wager from the online sports gaming business to make this point. Given what this gaming technology demonstrates, we are now able to see how technology may facilitate ever greater consumer interface around pricing, risk-taking, risk-prediction, and active choice in relation to qualitative events, features, and outcomes online. Using this technology, in conjunction with contract law and tort law norms, this Article argues that a recent decision by the Massachusetts Supreme Judicial Court analyzing Uber’s electronic form should demand more from sellers than the “click-through” option the court appears to set, as a baseline, for accomplishing assent with regard to electronic consumer contracting formation
Presuit Civil Protective Orders on Discovery
Get PDFThere are few civil procedure laws broadly authorizing trial courts in the United States to consider presuit requests seeking protection from discovery sanctions or spoliation claims in later civil actions. There should be more laws on presuit protective orders addressing information maintenance, preservation, and production.
New presuit protective order laws are most apt where there have been demands by potential adversaries involving alleged information preservation duties under civil discovery laws or under substantive spoliation laws; where the recipients have strong reasons to secure early judicial clarifications; and where the availability and use of presuit protective orders will serve both private and public interests in the just, speedy, and inexpensive determinations of civil claims. New protective order laws are also warranted for some potential witnesses in receipt of presuit information preservation demands.
An Arizona court rule, effective July 2018, authorizes presuit information preservation orders that go beyond the most common forms of presuit discovery. Yet that rule is limited and should not be fully modeled. The Arizona rule speaks only to “the existence or scope of any duty to preserve” electronically stored information (ESI). It allows those in receipt of a “preservation request” for information relevant to an expected or current lawsuit to petition for an order to determine any duty to preserve ESI. Petitioner need not be an anticipated adverse party in advance of a civil suit and need not be an anticipated new party to a pending related suit.
New laws on presuit protective orders should go further. They should authorize protective orders concerning both ESI and non-ESI. They should be available even at times when there may not be a legal duty to preserve. These new laws should, however, provide explicit guidelines limiting judicial discretion. Finally, any new laws on presuit protective orders should reflect the unique information maintenance, production, and preservation duties within a judicial system, whether in procedural (as with discovery sanctions) or substantive (as with independent spoliation claims) laws. A one-size-fits-all approach is unwarranted