Loyola University Chicago, School of Law: LAW eCommons
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Judging During Crises: Can Judges Protect the Facts?
Full text linkWith the advent of instantaneous information and the trend toward shrinking adherence to the truth, the conversation surrounding the ability of judges to conduct outside research into the matters before them is gaining urgency. In a “post-truth” world, the role that the judiciary plays in our democracy must shift from trier of fact to guardian of factual integrity. And to do this, the professional ethics rules assigned to the judiciary may need re-evaluation. This Essay argues that the judiciary’s ambivalence to its role as fact finder must be overcome, and where appropriate, judges may be empowered to seek out supplemental information to be shared with the parties to better identify the truth at the center of the controversy. Further, in light of the many powers judges already possess to investigate the facts, including to elicit witness testimony, further expanding the courts’ powers to research the matters before them will not undermine the unbiased nature of the judiciary. It will, rather, strengthen previously sanctioned powers of investigation to better protect against the ever-shifting political tides keen to influence the judicial outcomes handed down from the court
The Role of Judging 50 Years After the “Chicago Seven” Trial: A Remembrance of Charles R. Garry
Full text linkPreparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management
No full textThis Article considers the possibility that a major dispute over the outcome of the 2020 presidential election could arise, even without foreign interference or some other extraordinary event, but rather just from the ordinary process of counting ballots. Building upon previous research on the “blue shift” phenomenon, whereby adjustments in vote tallies during the canvassing of returns tends to advantage Democratic candidates, it is easy to imagine a dispute arising if this kind of “blue shift” were consequential in the presidential race. Using examples from both Pennsylvania and Arizona, two states susceptible to significant “blue shifts” in previous elections, the article shows how the dispute could reach Congress, where it potentially might metastasize into a full-fledged constitutional crisis. The most frightening scenario is where the dispute remains unresolved on January 20, 2021, the date for the inauguration of the new presidential term, and the military is uncertain as to who is entitled to receive the nuclear codes as commander-in-chief. In order to avoid this risk, Congress should amend the relevant statute, 3 U.S.C. § 15
Pragmatic Formalism, Separation of Powers, and the Need to Revisit the Nondelegation Doctrine
No full textIn a time where the executive branch continues to grow in size and strength, reviving the nondelegation doctrine has become more important than ever. Judicial enforcement of this abandoned rule that Congress cannot delegate its legislative power serves three vital functions. It preserves the separation of powers, prevents tyranny, and promotes democratic accountability. But even if we acknowledge that enforcement of the doctrine is necessary to preserve the American form of government, a more difficult question is how the doctrine ought to be enforced. This Article rejects the formulations of the nondelegation doctrine proposed by both functionalists and formalists and proposes “pragmatic formalism” as a solution that carves a path between the two existing theories. After explaining the theory and applying it to the facts of the Supreme Court’s major nondelegation cases, the Article also proposes a solution to one of the most difficult challenges facing the nondelegation doctrine: delegation during times of national emergency. By advocating for the use of pragmatic formalism to enforce the nondelegation doctrine, I hope to provide a rule that preserves the separation of powers, prevents tyranny, and promotes democratic accountability, but that also takes into account the realities and difficulties of lawmaking
Viral Sovereignty, Intellectual Property, and the Changing Global System for Sharing Pathogens for Infectious Disease Research
No full textConnecting the Dots: Quality, Antitrust, and Medicine
Full text linkAntitrust applies to healthcare. Questioning the wisdom of this universal truth, medical professionals actively insisted and still insist on professional discretion, self-regulations and other practices that violate the antitrust laws. What do medical professionals aim to achieve by resisting the application of antitrust into their profession? What do antitrust enforcers aim to achieve by applying antitrust law to the medical profession? The answer is simple. Among others, both antitrust enforcers and medical professionals aim to ensure quality. Interestingly, albeit their goal is identical, their approach is different. Why? This essay explores this enigma by analyzing some seminal healthcare antitrust cases. It concludes that the U.S. antitrust enforcers by remaining faithful to the narrative that, the more the available choices, the better the quality, miss a crucial point: that the quality of medical treatment also depends on non-economic values such as the notions of safety and trust, essential features of the therapeutic enterprise. This essay proposes that the antitrust enforcers should extend the notion of healthcare quality when they apply antitrust law in the healthcare sector so that this notion encompasses the multiple facets of healthcare quality and the ethical values the doctor - patient relationship crucially depends on. Adopting an alternative, less myopic, approach would allow the antitrust enforcers to create an analytical framework under which the multiple dimensions of healthcare quality could be balanced against harm to competition. More importantly, it would ensure that antitrust enforcers and medical associations do not continuously struggle to impose their own views on what the prevailing facets of healthcare quality should be. In Donabedian’s language, an alternative approach would ensure that all functions of the health system commit to the quality goals that the system as a whole pursues
