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Ethical Considerations Related to Using Machine Learning-Based Prediction of Mortality in the Pediatric Intensive Care Unit
No full textMachine learning shows promise for developing prediction models that could improve care in the pediatric intensive care unit (PICU). Advocates claim these systems enhance prognostic accuracy and can adapt to changing clinical practices by adding more and new large-scale child health data. Accurate predictive models using machine learning could benefit decision-making and care delivery and, in turn, outcomes for patients and families. Despite their potential, some of these models may replicate the biases of their training datasets or may be biased in other ways (eg, label bias or contextual bias), and are built without the capacity to explain how they reach decisions (so-called black boxes). Moreover, implicit trust or mistrust in technology may influence patients\u27, families\u27, and clinicians\u27 views of software-generated opinions as more objective and valid than they really are. This essay provides an overview of the ethical concerns posed by the advent of machine learning-based models for mortality prediction in the PICU. We discuss the benefits and risks related to this emerging technology, including considerations of technical questions, care delivery, family experience and decision-making, and clinician-family relationships, as well as legal and organizational issues
How NOT to Be a Federal Criminal: A Review of Mike Chase’s How to Become a Federal Criminal and the Case for Inclusion of His Illustrated Handbook in American Law Schools
No full textRequiring the Executive to Turn Square Corners: The Supreme Court Increases Agency Accountability in Department of Homeland Security v. Regents of the University of California
No full textAdministrative agencies frequently promulgate rules that have dramatic effects on peoples’ lives. Deferred Action for Childhood Arrivals (“DACA”) is one such example. DACA grants certain unlawful immigrants a temporary reprieve from deportation, as well as ancillary benefits such as work permits. In 2017, the Department of Homeland Security (“DHS”) sought to rescind DACA on the basis that the program violates the Immigration and Nationality Act.
This Comment analyzes the recent Supreme Court decision about DACA’s recission in Department of Homeland Security v. Regents of University of California. In rejecting DHS’s attempt to rescind DACA, the Court strengthened agency accountability in several important ways. The Court reaffirmed that the Administrative Procedure Act’s (“APA”) discretion exemption is extremely narrow. It also arguably created a way for courts to fault agencies for failing to consider nonreviewable discretionary policies. Additionally, the Court strengthened the post hoc justification doctrine.
This Comment also argues that Regents foreclosed agencies from relying on statutory abnegation—that is, disclaiming legal authority previously claimed—to rescind a policy. This deregulatory strategy is problematic because agencies that use it often attempt to circumvent traditional administrative law procedures. By repudiating statutory abnegation, the Supreme Court took another step to ensure that agencies remain accountable to the people whom their policies affect.
More broadly, the Court’s decision in Regents is part of a line of recent administrative law cases in which the Court has increased agency accountability. In several of these cases, the Court found that the APA’s discretion exemption does not apply to an agency action, even where the agency had good cause to believe it should. The Court also recently took steps to curtail the Auer deference doctrine. Read together, these cases establish that agencies must “turn square corners” when promulgating policies, or else risk being reversed in court
Dangerous and Unusual: How an Expanding National Firearms Act Will Spell Its Own Demise
No full textThe National Firearms Act of 1934 (NFA) is the strictest federal gun control law currently in effect. It criminalizes the mere possession and transfer of specifically enumerated categories of firearms deemed to be especially dangerous and unusual, such as machine guns and silencers. Commensurate with this viewpoint, the NFA imposes on violators harsh felony penalties, from lengthy prison sentences to six-figure fines. However, the NFA permits lawful civilian ownership of these firearms under a taxation and registration scheme administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In its 2008 District of Columbia v. Heller decision, the United States Supreme Court clarified what “arms” the Second Amendment protects—those that are “in common use” and those “typically possessed by law-abiding citizens for lawful purposes,” but not those that are “dangerous and unusual.” Under this formulation, NFA restrictions received an incidental presumption of constitutionality. That was then, this is now. In the intervening years since Heller, NFA firearms have exploded in popularity, amounting to millions of lawfully registered examples in civilian hands. As the NFA registry grows year after year, the federal government enjoys ever-increasing tax revenues. Consequently, registry expansion offers a lucrative and effective means of implementing gun control measures—ATF reclassification of existing non-NFA firearms and accessories as falling under the NFA can compel registrations or preclude ownership of controversial items altogether.
This Comment argues that the NFA’s modern expansionary trend is on a collision course with the Heller mandate. After Heller, the only constitutional NFA registry is a small one, reserved for the truly dangerous and unusual. By focusing on modern developments in three NFA categories—short-barreled rifles, silencers, and machine guns—this Comment contends that some NFA prohibitions are already constitutionally unsound and absent judicial intervention, Congress should remove them from the NFA altogether
Cognitive Theory & Evidence-Based Pedagogy
No full textIn this session, attendees will get an introduction to the basics of cognitive theory. The session will consider how concepts from evidence-based pedagogy should impact course design from developing learning objectives to class structure and content to exercise and assessment design; and how incorporation of strategies based on cognitive theory will greatly increase retention of legal research skills. Attendees will get multiple opportunities to apply evidence-based concepts to their own instruction, including creating short exercises to boost retention of skills
Inside the Black Box of Prosecutor Discretion
No full textIn their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what sorts of limits, supervision, or guidelines prosecutors work within. And we do not know what types of information prosecutors rely upon when making their decisions. Prosecutors’ decisions have accordingly been called a “black box” for their inscrutability.
Until now. We recruited over 500 prosecutors nationwide, and had them charge an identical case given identical substantive law, specify the plea bargain terms they would seek, and explain their decisions. We also learned about their internal office guidelines and procedures, and the information they rely upon when making charging and bargaining decisions.
Our study tells a story of surprising severity in how prosecutors dispose of a relatively mild case with no harm to victims, creating potentially devastating consequences for an offender suffering from apparent mental illness. Taking advantage of our vignette-survey design, which presents the exact same case to hundreds of prosecutors, we also document wild heterogeneity in prosecutor charging practices, with some dismissing the case out of hand and others demanding months or years of incarceration. We also find that many prosecutors lack meaningful guidelines or supervision. Nonetheless, in our review of their qualitative explanations, we also find prosecutors aspiring to do justice, concerned about harm to victims and the rehabilitation of offenders, and considering the offender’s mental health and financial wherewithal. From these findings, we shed light in an otherwise theoretically rich but empirically lacking area of criminal scholarship.
The National Prosecutor Survery can be accessed at: http://ssrn.com/abstract=3917195
The Origins of Supreme Court Question Selection
No full textArbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet, despite the significance of this practice, its origins are poorly understood. This is the first Essay to uncover the hidden history of the Court’s question-selection powers. It reveals an important---and possibly intractable---conflict between the Court’s legal authority and its practice.
Scholars usually explain the Court’s agenda control as either a power granted by Congress or a natural component of the judicial power. Tracing the statutory, legislative, and common law histories, this Essay presents a novel challenge to these standard narratives. The Court’s custom of targeting specific questions is not grounded in the history of appellate practice and Congress never intended to, and likely never did, give the Supreme Court the power to select its own questions. This history has profound repercussions for the Court’s appellate jurisdiction. The question-selection power rests uneasily with both the statutes and Article III’s case-or-controversy requirement, risks doing fundamental injustice to litigants, and pulls the Court deeper into politics---all of which put its legitimacy at risk. Abandoning this practice would almost certainly limit the Court’s ability to answer hot-button political questions, but it might also help to preserve the Court’s legitimacy
The Price of Exit
No full textThe price of exit influences the terms of intimate relationships—and constitutes an important factor in distinguishing committed from contingent relationships. With or without legal recognition of the relationship itself, the dissolution of an intimate relationship requires disentangling any joint assets, determining who stays and who leaves a joint residence, and arranging the terms of continuing involvement with any children. Marriage establishes bright-line rules for these determinations and a formal legal process for administering them. Unmarried relationships involve different default terms and no automatic legal process for resolving the terms of exit. The terms of exit, however, may frame relationship choices.
This Article will argue that, inside or outside of marriage, the critical choice couples make is between committed relationships, with a high degree of financial and emotional interdependence, and contingent relationships, in which the parties keep their identities, assets, and arrangements separate. Committed relationships inevitably entail high exit costs as the practicalities of splitting shared assets or determining the new terms for emotionally charged relationships such as childrearing can exact a high toll. Contingent relationships in contrast are easier to end precisely because of their contingent nature; couples often see each determination, whether about how to share rent or who picks the child up after school, as a separate transaction. Perceptions about the price of exit often shape the nature relationship choices and while today’s relationships exist on a continuum between those which are so interdependent that the parties effectively function as one, and so independent that an intimate couple may have no greater entanglements than college roommates, the distinctions between committed and contingent relationships often fall on the fault lines of class, race, and gender.
The typical unmarried relationship in reported decisions is a committed one, in which the parties have substantial assets and a degree of interdependence that makes existing law appear inequitable. These relationships differ, however, from the more numerous but less visible contingent relationships in which the parties have relatively few assets and a less equal and less intertwined assumption of relationship responsibilities. This Article, prepared for a symposium on nonmarriage, explores the price of exit as an analytical factor. By examining how the cost of exit influences family decision-making, the Article remakes understandings about the law that governs nonmarriage. Expectations about exit profoundly influence decision-making concerning partnering, regardless of socioeconomic class, yet expectations often differ by socioeconomic class. The legal frameworks applicable to conventional married families presume interdependence and shared parenting, which reflect terms that the couples would presumably choose themselves. These terms, however, are ill-suited to many nonmarital families.
Accordingly, the Article concludes that conflicting norms, particularly in the communities in which cohabitation is most common, complicates the imposition of uniform rules that presume dependency—or the obligations associated with it
Retribution Against Catholic Dioceses by Revival: The Evolution and Legacy of the New York Child Victims Act Claims Revival Window
No full textThis article considers the evolution of limitations relief for time-barred child sexual abuse tort claims in New York culminating with the claims revival window enacted in 2019 as part of the New York Child Victims Act (NYCVA). The story of child sexual abuse litigation against Catholic dioceses and the legal and political history of the NYCVA exposes the important but largely unexplored balance of competing policy objectives that limitations laws strike. How child sexual abuse claimants achieved retribution by revival in the NYCVA reveals the fragility of limitations laws and the importance of coherent and consistent policy for revival of other types of time-barred claims in the future