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[020] Excel Sheet Step 4 Long Form Sheet 1 of 1 Computing the Total FMV of TCs FCFs and TV Final
No full textTaking Exception to Criminal Justice Reforms that Fail to Transform: Using Transitional Justice to End the Carceral State
No full textComparative Rights to Counsel and Access to Justice: The American and Brazilian Approaches and Realities
No full textAn Imperfect War: The Legality of the \u27Soleimani Strike\u27 and Why the Biden Administration Should Adopt Its Precedent for Future Operations in Iraq and Afghanistan
No full textBail and Mental Illness
No full textIn many parts of the United States, the bail system is strikingly unfair, imposing burdensome, and often unmeetable, financial conditions on pretrial liberty even for low-risk defendants. Reforms that reduce or eliminate cash bail and lower pretrial detention rates have made progress in recent years, but now face growing opposition even in generally progressive jurisdictions such as San Francisco and New York City. One source of this opposition is rising concern about crime—particularly crime associated with the unhoused, who disproportionately suffer from mental illness, including substance abuse disorder. This is not a coincidence, as one effect of a cash-bail system, underappreciated in the legal literature, is to incapacitate (i.e., “get off the streets”) indigent, mentally ill defendants. Mentally ill individuals are arrested—often for low-level misdemeanors—and repeatedly cycle through the criminal justice system, often failing to meet traditional pretrial release conditions. Indeed, three U.S. jails serve as the country’s largest psychiatric “treatment” facilities for mentally ill defendants. Pretrial justice systems that routinely jail the mentally ill thus serve as dysfunctional band-aids for inadequate mental health treatment. They mask the need for a more effective alternative, over-stretch the capacity of jails and prisons, and negatively impact mentally ill defendants through inadequate care. But despite the manifest shortcomings of this approach, it provides at least short-term relief to those affected by crime, and bail reforms that make it more difficult to “solve” the problem of mentally-ill defendants by locking up them without providing alternative solutions—or at least identifying the underlying pathologies—are at risk of significant opposition, failure, or retrenchment.As a first step towards addressing the mutually destructive relationship between pretrial justice and mental health treatment, this Article argues for a disaggregation of mentally ill and traditional defendants within the pretrial criminal justice system in all respects: in arrest decisions, in pretrial screening, in judges’ determinations of pretrial release and conditions for release, and in data collection and reporting. Moreover, bail reformers should call for increased mental health funding to accompany reductions in pretrial detention. This will address only a small facet of the nation’s massive mental health crisis. But it will help to produce a more just bail system for all and move towards ending the cycling of mentally ill defendants through the U.S. criminal justice system
Emergency Room to the Courtroom: Providing Abortion Care Under EMTALA and State Abortion Bans
No full textAfter the Supreme Court eliminated the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, states began to broadly criminalize abortion. Abortion is criminalized and restricted even in situations that constitute an emergency medical condition under the Emergency Medical Treatment and Labor Act (“EMTALA”). State abortion bans with limited medical exceptions conflict with EMTALA’s protections for emergency screening and stabilization. Legal challenges to the scope of EMTALA show a growing divide and uncertainty on emergency abortion care in the United States. This Comment will discuss why physicians cannot confidently provide quality and competent abortion care without the statutory protections afforded within EMTALA. This Comment argues that the vague and medically inaccurate language in state abortion bans must be preempted by EMTALA. Ensuring physicians are obligated to follow EMTALA’s guidelines will lead to the best national public health and safety outcomes. It is within the federal government’s power and responsibility to ensure state restrictions on emergency abortion care do not interfere with national protections for emergency department screening and stabilization
A Theory of Federalization Doctrine
No full textThe doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in a failure by scholars and jurists to articulate the historical origins of and theoretical rationales for federalization doctrine. Constitutional theory ought not only to produce doctrine, but to validate the application of existing doctrine—or interpretive practices—as well. This Article explores this constitutional lacuna by studying several historical developments of pre-Republic state courts, state constitutions, and state laws to trace the theoretical origins of federalization. Further, it sets forth a justificatory theory of federalization doctrine by arguing that the doctrine emanates from the founding generation’s practices of consulting and borrowing the pre-Republic states’ judicial opinions, constitutions, and statutes to draft and interpret the federal Constitution and its Bill of Rights. These practices of consultation and borrowing should be recognized as the theoretical antecedent for the practical application of the Supreme Court’s modern-day doctrine of federalization. The Article concludes by discussing Chief Justice John Roberts’ special application of the theory of federalization doctrine in the Court’s Moore v. Harper landmark ruling discarding of the independent state legislature doctrine
It’s About Time: Rejection of the De Minimis Doctrine in State Wage and Hour Laws
No full textSince the passage of the Fair Labor Standards Act (“FLSA”) in 1938, courts have grappled with how to interpret which activities an employee performs for their employer should be considered “work.” The FLSA requires employers pay a minimum wage, pay overtime, and keep records of their employees’ time. However, to calculate these wages based on hours worked, the employer must know what constitutes “work.” Over the 80 years since its enactment, federal courts have adopted rules to determine what counts as work. One doctrine courts apply is the de minimis doctrine. Under the de minimis doctrine, employers do not need to compensate their employees for insignificant and insubstantial amounts of time. Federal courts have determined that some small amounts of work are too trivial for the employer to be required to track. Over time, the de minimis doctrine not only prevented employee plaintiffs from prevailing in claims brought under the FLSA but also permeated state wage and hour laws. Individual states are allowed to establish and regulate their own wage and hour laws in addition to the FLSA. Some states have adopted the de minimis doctrine and applied it to their own labor code. Other states have explicitly rejected the de minimis doctrine as applied to their respective state wage and hour laws. This Comment explores the reasoning behind these states’ decisions and implores other states to consider following suit. The de minimis doctrine is inconsistent with the purpose of wage and hour laws and is no longer relevant due to current advances in technology. This Comment also explores the recent changes in the American workplace due to COVID-19 and how they demonstrate that the de minimis doctrine is no longer consistent with the current marketplace
“Nutrition Facts Labels” for Artificial Intelligence/Machine Learning-Based Medical Devices—The Urgent Need for Labeling Standards
No full textArtificial Intelligence (“AI”), particularly its subset Machine Learning (“ML”), is quickly entering medical practice. The U.S. Food and Drug Administration (“FDA”) has already cleared or approved more than 520 AI/ ML-based medical devices, and many more devices are in the research and development pipeline. AI/ML-based medical devices are not only used in clinics by health care providers but are also increasingly offered directly to consumers for use, such as apps and wearables. Despite their tremendous potential for improving health care, AI/ML-based medical devices also raise many regulatory issues.
This Article focuses on one issue that has not received sustained attention in the legal or policy debate: labeling for AI/ML-based medical devices. Labeling is crucial to prevent harm to patients and consumers (e.g., by reducing the risk of bias) and ensure that users know how to properly use the device and assess its benefits, potential risks, and limitations. It can also support transparency to users and thus promote public trust in new digital health technologies. This Article is the first to identify and thoroughly analyze the unique challenges of labeling for AI/ML-based medical devices and provide solutions to address them. It establishes that there are currently no standards of labeling for AI/ML-based medical devices. This is of particular concern as some of these devices are prone to biases, are opaque (“black boxes”), and have the ability to continuously learn. This Article argues that labeling standards for AI/ML-based medical devices are urgently needed, as the current labeling requirements for medical devices and the FDA’s case-by-case approach for a few AI/ML-based medical devices are insufficient. In particular, it proposes what such standards could look like, including eleven key types of information that should be included on the label, ranging from indications for use and details on the data sets to model limitations, warnings and precautions, and privacy and security. In addition, this Article argues that “nutrition facts labels,” known from food products, are a promising label design for AI/MLbased medical devices. Such labels should also be “dynamic” (rather than static) for adaptive algorithms that can continuously learn. Although this Article focuses on AI/ML-based medical devices, it also has implications for AI/ ML-based products that are not subject to FDA regulation