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Evidence-Based Hearsay
Get PDFThe hearsay rule initially appears straightforward and sensible. It forbids witnesses from repeating secondhand, untested gossip in court, and who among us prefers to resolve legal disputes through untested gossip? Nonetheless, the rule\u27s unpopularity in the legal profession is well-known and far-reaching. It is almost cliche to say that the rule confounds law students, confuses practicing attorneys, and vexes trial judges, who routinely make incorrect calls at trial with respect to hearsay admissibility. The rule fares no better in the halls of legal academia. Although defenses exist, scholars have unleashed a parade of pejoratives at the rule over the years, proclaiming it, among other things, one of the law\u27s most celebrated nightmares, the spoiled child of evidence law, the partner in terror to the rule against perpetuities, and a bloated, nonsensical mess that is detached from empirical reality and common sense. How can such a conceptually simple rule create so much legal agita? In fact, there is a plethora of reasons: (1) the rule\u27s confusing definition makes it difficult to apply; (2) it often does not actually do what it purports to do, on account of its hodgepodge of exceptions and exemptions; and (3) it suffers from the minor problem that the empirical assumptions on which the rule is based are untrue. It follows that perhaps no other evidentiary rule is as ripe for reform on the fiftieth anniversary of the Federal Rules of Evidence than the rule barring hearsay. And in reimagining the rule, it is time to abandon the leeches and bloodletting that led to the current rule and embrace an evidence-based approach to hearsay reform
Developing Ethics and Equity Principles, Terms and Engagement Tools
Get PDFBackground:
Artificial intelligence (AI) and machine learning (ML) technology design and development continues to be rapid, despite major limitations in its current form as a practice and discipline to address all sociohumanitarian issues and complexities. From these limitations emerges an imperative to strengthen AI and ML literacy in underserved communities and build a more diverse AI and ML design and development workforce engaged in health research.
Objective:
AI and ML has the potential to account for and assess a variety of factors that contribute to health and disease and to improve prevention, diagnosis, and therapy. Here, we describe recent activities within the Artificial Intelligence/Machine Learning Consortium to Advance Health Equity and Researcher Diversity (AIM-AHEAD) Ethics and Equity Workgroup (EEWG) that led to the development of deliverables that will help put ethics and fairness at the forefront of AI and ML applications to build equity in biomedical research, education, and health care.
Methods:
The AIM-AHEAD EEWG was created in 2021 with 3 cochairs and 51 members in year 1 and 2 cochairs and ~40 members in year 2. Members in both years included AIM-AHEAD principal investigators, coinvestigators, leadership fellows, and research fellows. The EEWG used a modified Delphi approach using polling, ranking, and other exercises to facilitate discussions around tangible steps, key terms, and definitions needed to ensure that ethics and fairness are at the forefront of AI and ML applications to build equity in biomedical research, education, and health care.
Results:
The EEWG developed a set of ethics and equity principles, a glossary, and an interview guide. The ethics and equity principles comprise 5 core principles, each with subparts, which articulate best practices for working with stakeholders from historically and presently underrepresented communities. The glossary contains 12 terms and definitions, with particular emphasis on optimal development, refinement, and implementation of AI and ML in health equity research. To accompany the glossary, the EEWG developed a concept relationship diagram that describes the logical flow of and relationship between the definitional concepts. Lastly, the interview guide provides questions that can be used or adapted to garner stakeholder and community perspectives on the principles and glossary.
Conclusions:
Ongoing engagement is needed around our principles and glossary to identify and predict potential limitations in their uses in AI and ML research settings, especially for institutions with limited resources. This requires time, careful consideration, and honest discussions around what classifies an engagement incentive as meaningful to support and sustain their full engagement. By slowing down to meet historically and presently underresourced institutions and communities where they are and where they are capable of engaging and competing, there is higher potential to achieve needed diversity, ethics, and equity in AI and ML implementation in health research
Towards an Effective Transnational Regulation of AI
Get PDFLaw and the legal system through which law is effected are very powerful, yet the power of the law has always been limited by the laws of nature, upon which the law has now direct grip. Human law now faces an unprecedented challenge, the emergence of a second limit on its grip, a new “species” of intelligent agents (AI machines) that can perform cognitive tasks that until recently only humans could. What happens, as a matter of law, when another species interacts with us, can be integrated into human minds and bodies, makes “real-world” decisions—not through human proxies, but directly—and does all this “intelligently”, with what one could call autonomous agency or even a “mind” of its own? The article starts from the clear premise that control cannot be exercised directly on AI machines through human law. That control can only be effected through laws that apply to humans. This has several regulatory implications. The article’s first discusses what, in any attempt to regulate AI machines, the law can achieve. Having identified what the law can do, the article then canvases what the law should aim to achieve overall. The article encapsulate its analysis in a list of both doctrinal and normative principles that should underpin any regulation aimed at AI machines. Finally, the article compares three transnational options to implement the proposed regulatory approach
A New Era at the Court of International Trade: Endemic, Executive Orders, and Enforcement
Get PDFJudicial conferences offer a unique opportunity for the bench and bar to gather and discuss issues that matter to all of a court\u27s stakeholders. That gathering has rarely been more important as courts seek to reestablish a sense of normalcy after COVID-19. The 21st Judicial Conference of the Court of International Trade (CIT or the Court ), held in October 2022, was thus propitiously timed to allow the members of the Court to interact with members of the bar in a conference setting for the first time since before the pandemic. More than simply a post-Covid exercise, though, the conference also allowed the bench and bar to take stock of the dramatic changes in international trade law and policy that have occurred in the last several years and that seem increasingly entrenched. The increased use of executive power to regulate trade and impose duties, potential changes to administrative law doctrines that are foundational to practicing before the Court, and an expanding effort to impose and collect duties on imports for a range of policy goals. This essay serves as an introduction to the articles published from that conference, as well as a general description of the conference itself. The articles deal with a range of topics of importance to the CIT and the attorneys practicing before it, including administrative law practice at the CIT, rules of origin, the potential use of duties to counteract climate change, and relatively new rules designed to catch the evasion of antidumping and countervailing duties. The essay proceeds in three parts. Part II briefly describes the CIT itself, a unique federal court. Part III describes the Judicial Conference\u27s main themes, while Part IV introduces the articles that fill the remainder of this issue
Historicizing the War(s) on Drugs across National (and Disciplanary) Borders
Get PDFNotwithstanding the title, The War on Drugs: A History, this illuminating book is not a history of the War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.
But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the carceral state. It certainly offers insights for those burgeoning subfields. But it contains a little something for everyone-well, everyone in the legal academy-whether they focus on the administrative state, on international law and foreign relations, or even on corporations. Indeed, one lesson reinforced by this book is that siloing the fields I just listed into separate scholarly communities, publications, and curriculums can hinder understanding of the various forms of relief and suffering, power and oppression, wealth and poverty produced by the drug trade and efforts to control that trade
A Balanced Prescription for More Effective Environmental Regulations
Get PDFGovernment agencies increasingly base the structure and approval of environmental regulations on a benefit-cost test. For regulations that pass this test, total benefits exceed total costs. Under a benefit-cost framework, the degree of regulatory stringency is set at an economically efficient level whereby the tightness of the regulation is increased up to the point where the incremental benefits equal the incremental costs. Setting regulatory standards to achieve the efficient degree of pollution control does not fully discourage entry into polluting industries, provide compensation to those harmed by pollution, or establish meaningful incentives for effective enforcement. This article proposes that the benefit-cost approach be retained as the guiding principle for regulatory policy, but that sanctions for regulatory violations be greatly enhanced. A different, more ambitious proposal by Elliott and Esty advocates pollution control to the lowest level that is technologically feasible, coupled with compensation for those injured by pollution. The unbounded regulatory framework advocated by Elliott and Esty sets aside benefit-cost balancing, generating the prospect of inordinate costs with few environmental dividends from the highest levels of stringency. Their more promising proposal is to establish a compensation system for environmental harms. Compensation for those harmed by pollution has some parallels with successful workers\u27 compensation programs, but to be successful it must address challenges not faced in the employment context. More stringent regulation of long-term risks may be more welfare-enhancing for future generations than their proposed environmental damages compensation fund. Protection may yield greater dividends for more affluent future generations than compensation
The Problematic Forgotten Buyback
Get PDFTotaling in excess of $100 billion dollars in transactions annually, debt buybacks allow a company to repurchase bonds from investors, rewriting bargains and stripping away creditor control rights in the process. This Article shows that regulation systematically underprotects bondholders in the context of debt buybacks. It makes three points. First, bondholders confront information asymmetries that enable issuers to buy back creditor claims cheaply. Regulation imposes near negligible requirements on issuers to disclose information about the transaction. Lacking fiduciary protection, bondholder interests are vulnerable to being extinguished by issuers in the interests of promoting those of shareholders and managers. Second, buybacks diminish the power of creditor control rights. Alongside information asymmetries, bondholders confront coordination costs and tight deadlines within which to evaluate the terms of a buyback and changes to bondholder control rights. Owing to these costs, issuers can systematically underprice control rights. Bondholders will not act where the gains of agitation will be less than the cost of information gathering, coordination, and action. By strategically underpricing a buyback by an amount approximating these transaction costs, an issuer can pocket the difference between the price paid for the claim and that which should have been paid to bondholders for their bargain. Third, debt buybacks can allow one set of creditors-—notably, banks-—to extract value from bondholders. By pushing an issuer to buy back bond claims cheaply, banks-—usually with greater individual exposure through loans-—can increase their chances of being repaid. They can also acquire a more powerful voice in the issuer’s internal governance by muting that of bondholders. In highlighting regulation’s forgotten but problematic buyback, this Article offers two proposals to bolster bondholder protection, advocating for greater disclosure and contractual fixes to safeguard the value of claims. These proposals help to preserve the welfare of investors and protect their longer-term confidence in debt capital allocation
Rationing Access
Get PDFProtection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources-—national parks, fisheries, heritage sites, and fragile ecosystems-—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on a variety of economic, informational, and technological techniques that can be readily adjusted to changing circumstances. By focusing on the point of entry, access rationing prevents harm to natural resources from arising ab initio. Furthermore, access rationing offers the twin virtues of simplicity and flexibility. Finally, access rationing has the additional advantage of transparency, as it allows members of the public and nonprofit organizations to monitor the performance of regulatory agencies. Drawing on a myriad of real-world examples, the present Essay is the first to provide a comprehensive theory of access-based measures for governing the commons
Unenforceable Waivers
Get PDFTextbook tort law establishes that waivers of liability—-especially those involving physical harm-—are often unenforceable. This Essay demonstrates through an extensive survey of the case law that despite being unenforceable, such waivers remain in widespread use. Indeed, defendants frequently use waivers even when a court has previously declared their specific waivers to be void. So why do such waivers persist? Often the simple answer is to hoodwink would-be plaintiffs. Waivers serve as costless deterrents to tort claims: Either they dupe naïve victims into believing that their claims are barred, or if not, the defendant is no worse off than before. Such flouting of unenforceability doctrine undermines the goals of the tort system-—denying compensation to victims and eroding the care incentives of prospective injurers. In this Essay, we focus some long-overdue attention on the problem of unenforceable waivers and explore some solutions