Loyola University Chicago, School of Law: LAW eCommons
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The Science of Administrative Change
Full text linkDonald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to deconstruct the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a war on science, implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data? Perhaps surprisingly, the Trump administration\u27s efforts align with views that have dominated administrative law scholarship in recent decades. By the time Trump took office, many leading administrative law scholars had already championed enhanced presidential control over agency decisions, dismissed expert analysis as an anachronistic relic of the New Deal, and suggested that the considered judgments of previous administrations should be amenable to quick and easy change.
This article takes a contrary view and asserts a renewed role for expert, reasoned analysis in the face of politically motivated administrative change. Unlike earlier work, this article identifies change as a fundamental and essential aspect of much expert decision-making, and it explains that regulatory statutes often call for an exercise of expert judgment capable of incorporating frequently changing bodies of scientific, technological, or economic knowledge. This positive procedural account of agency decision-making shows that the reasoned analysis contributed by agency expertise is far from superfluous, but contributes legitimacy and transparency to administrative government. By identifying the value of expertise within the context of politically directed policy changes, this article addresses an under-theorized aspect of judicial review of agency decisions and reinforces the need for agencies to support changes in policy with reasoned, expert analysis
The Conscience Defense to Malpractice
No full textThis Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.
Scholarship and public debate about law\u27s role in protecting health care providers\u27 conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate--that is, the precise procedural mechanisms by which laws protect medical providers who decline to provide services that violate their deeply held conscientious beliefs.
This Article demonstrates that state laws vary dramatically in the types of protections they offer. States may immunize health care providers from a range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in educational opportunities, and denial of public or private funding, among others. Of these, immunity from civil liability, or “civil immunity,” is by far the most common procedural protection. In a majority of states, civil immunity is absolute--providing no exceptions in cases of malpractice, denial of emergency treatment, or even patient death. In practice, these laws eliminate patients\u27 common law right to recover monetary damages when they suffer physical injury as a result of a health care provider\u27s conscience-based deviation from the standard of care.
While many scholars have examined the impact of conscience laws on patient access to medical care, there has been no comprehensive analysis of these laws\u27 impact on patients\u27 right to a tort law remedy when they are denied care. This Article not only raises awareness of the previously unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law\u27s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws
What is a Grave International Crime? The Rome Statute, Durkheim and the Sociology of Ruling Outrages
No full textWhy Ricardo\u27s Theory of Comparative Advantage regarding Foreign Trade Doesn\u27t Work in Today\u27s Global Economy
No full textThe theoretical basis for international trade is Ricardo’s theory of comparative advantage. Paul Samuelson, one of the leading lights in the economics profession in the 20th century, referred to it as one of the most beautiful ideas in economics. Yet, no one seems to have considered its validity in the context of the current global trade environment.
What free-trade advocates have not done is to look at the bases underlying Ricardo’s theory, namely, that capital is loyal to the country of origin and that the value of currencies is responsive to imbalances in trade. This article demonstrates that capital is not loyal to the country of origin and that currencies do not move to smooth out imbalances in trade.
This then forces us to look at the political, economic, and national security aspects of global trade, rather than just repeating the mantra that free trade benefits all. Clearly, there are winners and losers and, thus far, American workers have been the losers. The last election demonstrates that exporting jobs to countries such as China has domestic political consequences when people believe that the system is not working for them.
The article then asserts we need an industrial policy for this country that seeks to benefit not just shareholders but also workers, and which recognizes the national security implications of global trade and the danger of supply chains that run through a potential adversary
Confederate Monuments as Badges of Slavery
No full textThis Article develops a Thirteenth Amendment theory supporting the removal of Confederate symbols from government properties. It argues that such monuments to the Lost Cause are badges of slavery that should have no place in public squares.
The Article discusses how white supremacist groups, such as those who participated in the 2017 Unite the Right March in Charlottesville, effectively draw together around monuments honoring leaders and soldiers who fought for the cause of slavery. Relying on the Thirteenth Amendment\u27s principles of freedom, States and municipalities can and should eliminate those monuments from their properties. Such policy initiatives communicate the government\u27s disapproval of secession\u27s racist premises and advance the nation\u27s commitment to equal liberty untainted by the Confederacy\u27s peculiar institution
The Omega Man or the Isolation of U.S. Antitrust Law
No full textThere is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson\u27s 1954 classic science fiction novel, I am Legend, and the later 1971 film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth.
While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United States antitrust law and policy diverges significantly from the rest of the global antitrust community in important areas of scope, philosophy, doctrine, procedure, remedies, and institutions. Much of this divergence in world view is the product of history and path dependence that is largely unique to the United States experience. At the same time, some of the divergence is the result of ideological choices over the past forty years that improbably have remained in place in the United States, while other politics, economics, values, and policy choices have come into prominence throughout the rest of the world.
Unlike The Omega Man, there is no plague and there are no monsters. But there are major fault lines in competition law and policy where the United States is the outlier and in danger of becoming The Omega Man. While there are also many issues of agreement where the United States has been a thought leader, there are a significant number of the most salient and controversial issues in modern competition law where the United States is choosing to go it alone or nearly so.
There are some important caveats to this tale of antitrust exceptionalism. Some of the United States antitrust exceptionalism means more enforcement than elsewhere in the world. In most of the areas discussed in this article, it means less enforcement that is seen elsewhere, particularly than in the European Union and the numerous jurisdictions whose competition law is modeled on EU principles. Nor does going it alone, or being in the minority, mean that the United States position necessarily is in error, but it does caution against demonizing foreign approaches or relentlessly searching to transplant U.S. approaches into very different societies.
This Article surveys several significant areas of antitrust law and policy where United States law, procedure, institutions, and remedies differ significantly from the rest of the world. The basic thesis of the Article is that the growing isolation of U.S. antitrust law is more than just a transatlantic divide. Rather, much of the global community understands U.S. antitrust law and policy, but has rejected its current narrow form in favor of a broader vision of what competition law means, what legal rules are appropriate, and how they should be enforced. Even in areas such as mergers and cartels, outward convergence often masks critically different practices just beneath the surface.
As a result, the debate over the future of the Chicago School is largely moot. Examining what the rest of the world competition community actually does, rather what it says, shows the debate is largely over. Whether measured by numbers of jurisdiction, percentage of world gross domestic production, population, or most other measures, the Chicago school paradigm is the outlier, The Omega Man
Electoral College: Supreme Court Decides That States May Replace or Punish Presidential Electors Who Do Not Vote for the Candidate Who Won the Most Votes in the State, but Leaves Several Questions Unanswered
No full textReproductive Dreams and Nightmares: Sperm Donation in the Age of At-Home Genetic Testing
No full textRecent technological developments surrounding genetic testing pose new challenges to well-established reproductive practices. One current example is the fertility industry’s struggle to maintain gamete donor anonymity against the growing use of direct-to-consumer DNA tests. Consider the widely covered story of Danielle Teuscher, who in 2019 accidentally discovered the identity of her daughter’s anonymous sperm donor after using a 23andMe DNA test. Danielle’s attempt to reach out to the newfound family member was followed by a cease and desist letter from the sperm bank for violating their agreement. In addition, the sperm bank refused to give Danielle the four vials of sperm from the same donor, which she had reserved for future use, thus thwarting her reproductive plans to have genetic siblings for her daughter. The Teuscher case introduces a type of reproductive dispute that United States courts have not yet resolved. This Article considers several of the new legal questions produced by this set of novel circumstances, about the legal framework through which the dispute should be adjudicated, the nature of the rights at stake, and the harms imposed by forced or confounded procreation. It argues that in the social context of anonymous sperm donation, the contractual approach is a more appropriate—if insufficient—legal prism through which a dispute over the use of donated sperm should be resolved. The context of sperm donation also demands a nuanced treatment of the rights at stake—one that distinguishes, for example, between the right not to be a genetic parent and the right not to be a parent in the legal sense. Furthermore, properly articulating the interests of the parties requires a reassessment of the harm that forced procreation will impose on a person who at least at some point in time agreed to father a child they would not know or care for, as well as the harm imposed on a person denied a child carrying a particular genetic constituency