5033 research outputs found
Sort by
Gundy v. United States
No full textEach year, the Supreme Court of the United States announces new rulings with deep consequences for our lives. This second volume in Palgrave’s SCOTUS series explains and contextualizes the landmark cases of the US Supreme Court in the term ending 2019. With a close look at cases involving key issues and debates in American politics and society, SCOTUS 2019 tackles the Court\u27s rulings on the census citizenship question, partisan gerrymandering, religious monuments, the death penalty, race in jury selection, double jeopardy, jury trials for reimprisonment during supervised release, Fourth Amendment protection for blood alcohol tests, deference to federal agencies, excessive fines under the Eighth Amendment and more. Written by notable scholars in political science and law, the chapters in SCOTUS 2019 present the details of each ruling, its meaning for constitutional debate, and its impact on public policy or partisan politics. Finally, SCOTUS 2019 offers an analysis of the controversial Justice Brett Kavanaugh\u27s first term in office, as well as a big-picture look at the implications of the Court\u27s decisions for the direction of this new Roberts Court
US military medical ethics in the War on Terror
Get PDFMilitary medical ethics has been challenged by the post-11 September 2001 ‘War on Terror’. Two recurrent questions are whether military physicians are officers first or physicians first, and whether military physicians need a separate code of ethics. In this article, we focus on how the War on Terror has affected the way we have addressed these questions since 2001. Two examples frame this discussion: the use of military physicians to force-feed hunger strikers held in Guantanamo Bay prison camp, and the uncertain fate of the Department of Defense’s report on ‘Ethical Guidelines and Practices for US Military Medical Professionals’
Revisionist History? Responding to Gun Violence Under Historical Limitations
Get PDFIn the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this right looks in relation to those?” Justice Thomas, in cert denial dissents for recent Second Amendment cases, has referenced the importance of history in determining what the Framers understood the Second Amendment to protect. There is an open question as to what role history should play in evaluating gun control regulations and, given present circuit splits, it is only a matter of time before this debate finds its way to the highest court. Absent in these debates on history, and Second Amendment discussions more generally, is police power doctrine in the area of public health. The judiciary must recognize that police power enables the state to recognize the changes in firearm technology and the continued growth of gun violence plaguing this country. Looking to relevant public health law cases, particularly Jacobson v. Massachusetts, helps to illustrate that history has not, and cannot, be the sole focus in determining the scope of the state’s ability to tackle public health problems, including gun violence
Administrative Adjudication and Adjudicators
Get PDFThe appointment, removal, supervision and allocation of cases to Administrative Law Judges (ALJs) and other non-Article III adjudicators in the United States federal government continues to create vexing legal issues for courts and commentators. This article is an effort to address all of these issues together, to facilitate a holistic understanding of the place of non-Article III adjudicators in the federal government. The appointment question revolves around whether non-Article III adjudicators are Officers of the United States, which most are. There are two issues surrounding the removal of non-Article III adjudicators. First, for reasons sounding in due process concerns, adjudicators are usually granted a degree of independence manifested in protection from at-will removal, but it is unclear whether such insulation is actually constitutionally required. Second, the protection of adjudicators in independent agencies from at-will removal has come under scrutiny recently because the Supreme Court has determined that two levels of for-cause protection from discharge for other Officers of the United States unduly impedes the President from exercising the functions of the presidency. The issues surrounding the supervision of non-Article III adjudicators are similar to those concerning their removal, balancing the need to ensure due process against the need for centralized control of the execution of the law. The allocation of cases to non-Article III adjudicators raises concerns that grow out of Article III’s vesting of the judicial power in the federal courts. The traditional divide between public rights, freely assignable to non-Article III adjudicators, and private rights, reserved to the federal courts, has broken down. By sorting the cases more finely into distinct categories of public and private rights, this article aims to provide greater clarity concerning when assignment of cases to non-Article III adjudicators is constitutionally permissible
If International Law Is Not International, What Comes Next? On Anthea Roberts’ Is International Law International?
Get PDFI am thrilled that the editors of the Boston University Law Review have chosen to review Anthea Roberts’ recent book, Is International Law International?, for their annual symposium. In order to answer the title’s question, Roberts develops a research project to scrutinize a world she knows well: the field of teaching international law, her colleagues, and their students. The result is a rigorous disaggregation of the multifarious ways that international law is taught across the globe, thus demonstrating the lack of universality in the study of international law
Digital Market Perfection
Get PDFGoogle’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap first by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas observers have largely focused on protecting consumers and sellers from digital intermediaries’ market power, sellers like Amazon, Comcast, and Wells Fargo can also harm consumers by obstructing automated assistants. Advancing consumer welfare in the automated era requires not just consumer protection, but digital intermediary protection. The Article also shows the unpredictable side of the end of switching costs. If digital assistants become pervasive, they could gain the ability to rapidly direct millions of consumers to new purchases whenever a lower price or new innovation becomes available. Significantly accelerated consumer switching — what I call hyperswitching — does not inevitably harm society. But in the extreme it could make some large markets more volatile, raising unemployment costs or financial stability concerns as more firms fail. This new kind of disruption could pose challenges for commercial and banking regulators akin to those familiar to securities regulators, who deploy idiosyncratic tools such as a pause button for the stock market. Even if sellers prevent extreme hyperswitching, managers may strategically prepare for hyperswitching with economically costly behavior such as hoarding liquid assets or forming conglomerates to provide insurance against a sudden exodus of customers. The transaction-cost focused literature has missed more macro-level drawbacks.The regulatory architecture reflects these scholarly gaps. One set of agencies regulates automated assistants for consumer protection and antitrust violations, but does not go beyond those microeconomic inquiries. Nor do they prioritize strengthening digital intermediaries. Regulators with more macroeconomic missions lack jurisdiction over automated assistants. The intellectual framework and regulatory architecture should expand to encompass both the upsides and downsides of digital consumer sovereignty
Mistaken about mistakes
Get PDFTheoretical work in behavioral economics aims to modify assumptions of standard neoclassical models of individual decision-making to better comport with observed behavior. The alternative assumptions fall into at least two categories: nonstandard preferences and psychological mistakes. Applications of behavioral economics models in law, however, tend to assume that deviations from standard neoclassical models are meant to build in psychological mistakes that produce regrettable choices. Often follow-on policy prescriptions suggest interventions that either help individuals choose correctly or go further to substitute the “correct” choices for those that mistake-prone individuals might choose in error. Such policy prescriptions are ill suited in cases where the applied behavioral economics model assumes non-standard preferences as opposed to psychological mistakes. This essay provides examples of models in each category and examples of mistaken applications of models that assume non-standard preferences rather than psychological mistakes. It also suggests ways to avoid errors when applying behavioral economics theories in law
Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security
Get PDFHarmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well. Our aim is to provide the first in-depth assessment of the causes and consequences of this disruptive technological change, and to explore the existing and potential tools for responding to it. We survey a broad array of responses, including: the role of technological solutions; criminal penalties, civil liability, and regulatory action; military and covert-action responses; economic sanctions; and market developments. We cover the waterfront from immunities to immutable authentication trails, offering recommendations to improve law and policy and anticipating the pitfalls embedded in various solutions
Foreign Affairs Prosecutions
Get PDFContemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls for greater congressional engagement and judicial oversight to minimize such risks while still promoting accountability for cross-border, cyber, and international crime
A roadmap for sustainably governing the global antimicrobial commons
No full textAntimicrobials are needed to treat deadly infections, enable life-saving medical procedures, and manage disease in food production. But antimicrobials come with a trade-off: their use accelerates antimicrobial resistance (AMR), which diminishes the future effectiveness of these medicines. This trade-off makes “antimicrobial effectiveness” a precious global common-pool resource that must be collectively protected. Yet antimicrobials have been used inappropriately for decades. In too many circumstances, antimicrobials are deployed to compensate for inadequate infection prevention and control (IPC) in both human health and food production, instead of implementing water, sanitation, and hygiene (WASH) and IPC measures such as preventing hospital overcrowding and ensuring good equipment sterilisation practices. In the process, this precious resource has been jeopardised