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Legal and Ethical Responsibilities Following Brain Death: The McMath and Muñoz Cases
Get PDFWhat are the legal and ethical implications of continuing to treat a brain dead patient? And may a hospital refuse to provide such treatment? These ethical and legal problems are raised in two recent cases. In the first Marlise Muñoz, a pregnant woman declared brain dead, was kept on life support against her family’s wishes due to the treating hospital’s interpretation of a Texas fetal protection law. In the other a hospital refused to treat Jahi McMath, a brain dead girl, despite her family\u27s entreaties. The cases, at first, appear similar because in each case the hospital was refusing to abide by the family’s wishes. But on closer reflection, they are markedly dissimilar.
This opinion piece distinguishes brain death from a persistent vegetative state, arguing that once a person is brain dead it is unethical to continue treatment. Deceased individuals do not possess legally or ethically cognizable interests. The article similarly takes issue with the trend of placing the value of autonomy above all other interests, as well as perverting the meaning of autonomy. I argue that autonomy, properly understood, is the right to avoid unwanted intrusions rather than a right to have any medical treatment, however futile or cost ineffective. Finally, the article considers the competing claims in the Muñoz case—the woman’s right of autonomy on the one hand and the state’s interest in safeguarding her fetus on the other. Here, the article makes the case that the Texas statute protecting fetuses is not applicable to a deceased woman—a claim supported by a recent Texas district court opinion
Constitutional Skepticism: A Recovery and Preliminary Evaluation
Get PDFThe aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that the various strands share a common core. At base, all forms of constitutional skepticism rest on doubts about whether moral and political disagreement can be bridged by a legal text. Those doubts, in turn, are grounded on a rejection of global moral skepticism and on deep strands of American thought that emphasize the possibility of moral knowledge. In Part III, I very briefly suggest some preliminary conclusions about how we should view constitutional skepticism. I argue that there are reasons to think that a dose constitutional skepticism might mitigate some of our current political dysfunction
How Many Wrongs Make a Copyright?
Get PDFDerek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full of inconsistencies and exceptions does not justify such profound changes. Bambauer’s true target is § 230 of the Communications Decency Act, which protects online intermediaries from liability stemming from users’ violations of others’ privacy. Copyright claims aren’t subject to § 230, so his proposal hopes to force intermediaries to do more in revenge porn cases. But the case for requiring more from intermediaries to protect privacy should be made on its own merits, not by distorting copyright law
Introduction to \u3ci\u3ePhilosophical Foundations of Contract Law\u3c/i\u3e
Get PDFThis Introduction to Philosophical Foundations of Contract Law (Gregory Klass, George Letsas & Prince Saprai eds., Oxford University Press, forthcoming) describes the field of contract theory and locates the essays in the volume within that field. The volume includes chapters from Aditi Bagchi, Randy Barnett, Lisa Bernstein, Mindy Chen-Wishart, Charles Fried, Avery Katz, Dori Kimel, Gregory Klass, George Letsas and Prince Saprai, Daniel Markovits, Liam Murphy, David Owens, J.E. Penner, Margaret Jane Radin, Joseph Raz, Stephen Smith, and Charlie Webb
The Increasing Weight of Regulation: Countries Combat the Global Obesity Epidemic
Get PDFObesity is a global epidemic, exacting an enormous human and economic toll. In the absence of a comprehensive global governance strategy, states have increasingly employed a wide array of legal strategies targeting the drivers of obesity. This article identifies recent global trends in obesity-related legislation and makes the normative case for an updated global governance strategy.National governments have responded to the epidemic both by strengthening traditional interventions and by developing novel legislative strategies. This response consists of nine important trends: (1) strengthened and tailored tax measures; (2) broader use of counter-advertising and health campaigns; (3) expanded food labeling; (4) increased attention to the built environment; (5) expansion of bundled school-based strategies; (6) greater restrictions on advertising and marketing to children; (7) strengthened restrictions, standards, and bans on specific foods and food additives; (8) more targeted screening and brief interventions; and, (9) creative use of integrated programs to promote sustainable agriculture, environment and healthy food.There remains a need to create a centralized, publicly accessible database of interventions. In addition, the scale of the obesity epidemic combined with the global trend toward more comprehensive regulation may for the first time create political space and will for an international obesity strategy
Supreme Court Institute Annual Report, 2013-2014
Get PDFDuring the 2013-2014 academic year–corresponding to the U.S. Supreme Court’s October Term (OT) 2013–the Supreme Court Institute (SCI) provided moot courts for advocates in 96% of the cases heard by the Court this Term, offered a variety of programs related to the Supreme Court, and further integrated the moot court program into the education of Georgetown Law students. A list of all SCI moot courts held in OT 2013–arranged by argument sitting and date of moot and including the name and affiliation of each advocate and the number of student observers–follows the narrative portion of this report
E-Cigarettes, Vaping, and Youth
Get PDFE-cigarettes, a relatively new product, storming the tobacco industry are causing a massive stir among public health advocates. While e-cigarettes have the potential to serve as an effective harm reduction tool for existing smokers, they also may present an equally tempting pathway to first time smoking, particularly among youth. Many fear that e-cigarettes will revive the popular smoking culture that has taken decades to dismantle.
In April 2014, the FDA issued proposed rules to “deem” or extend its authority over tobacco products to regulate electronic cigarettes, cigars, pipe tobacco, nicotine gels, waterpipe (hookah) tobacco, and orally ingested dissolvable tobacco products. As proposed, FDA’s rules, among other things, would set a federal minimum age of 18 years to use e-cigarettes, require identification to purchase them (currently, just more than half of states impose age restrictions), prohibit most sales in vending machines, mandate warning labels on packaging, and prohibit manufacturers from providing free samples. Further, companies would be permitted to make claims for reduced risk only if the agency confirms the claim based on scientific evidence while also finding a benefit to the health of the public.
While the proposed rules represent a watershed moment in tobacco control, they still leave major regulatory gaps affecting the most vulnerable population, youth. FDA’s silence when it comes to the use of flavored nicotine and marketing practices is certain to have negative consequences for youthful smokers. The agency should move boldly and rapidly to prevent companies from exploiting youth. By bolstering the proposed rules to limit advertising and prohibit flavored nicotine, the agency could prevent proliferation of e-cigarette use among adolescents, while not undermining its regulatory goal of reducing harm. The public health community must speak with a clear voice to urge meaningful and effective regulation to protect US youth against the reinvention of Big Tobacco
Niche Markets and Their Lessons
Get PDFMarkets are full of nooks and crannies. Out of the glare of the big economies and their public exchanges, markets specializing by financial product, activity, or industry thrive, often attracting little by way of formal regulatory oversight. But there is another kind of specialized market, one which is geographically and politically determined albeit internationally focused. Luxembourg, Ireland, Dubai, Bahrain, Malaysia, Singapore, Switzerland, among others, these are some of the world’s niche markets.It is a hard business being a niche market, operating in a competitive and often unforgiving environment, engaging in constant repositioning and facing inherent limitations on growth. Surprisingly, perhaps, there are lots of niche markets and a very diverse grouping they are, deploying a variety of survival strategies. In all cases, state capitalism, in various guises, supports these markets. In earlier times, reputation, a friendly regulator, and good business practices might have sufficed. Now, there is a new dynamic. This chapter in a new book, International Capital Markets: Law and Institutions (Oxford University Press, 2014), examines the characteristics of niche markets, such as a high tolerance for legal pluralism and the role of state capitalism, the vulnerabilities of niche markets, especially to change, and the secrets of their success
Bulk Metadata Collection: Statutory and Constitutional Considerations
Get PDFThe National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of Smith v. Maryland, the privacy invasions resulting from the universal use of pen registers and trap and trace devices, and the advent of new technologies.
Over the past decade, tension has emerged between the view that new technologies should be considered from the perspective of trespass doctrine and the view that Katz’s reasonable expectation of privacy test should apply. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines. Under trespass doctrine, the primary order for the telephony metadata program amounts to a general warrant—the elimination of which was the aim of the Fourth Amendment. Under Katz, in turn, citizens do not expect that their telephony metadata will be collected and analyzed. Most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information.
FISA reform is necessary to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of statutory and constitutional law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs,” and requiring the government to demonstrate past effectiveness prior to obtaining renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States
Ebola: Towards an International Health Systems Fund
Get PDFThe current outbreak of Ebola virus disease (EVD) in West Africa is spiraling out of control, but it never had to happen. What can the international community do now to bring the epidemic under control, and how can we prevent the next one?
The counties most affected by Ebola (Guinea, Liberia, and Sierra Leone), rank among the lowest in global development, lacking essential public health infrastructure. If the affected countries had adequate public health systems, they probably would have contained Ebola within rural settings, avoiding the first outbreak in major urban areas.
More than 130 health workers have died from Ebola during the current outbreak, depleting already scarce human resources. Hospitals lack personal protective equipment and safe isolation facilities, becoming amplification points for transmission. The absence of basic public health infrastructure means that countries have instead often resorted to military-led cordons sanitaires, without ensuring access to basic necessities, such as food, clean water, and health care.
This article proposes an International Health Systems Fund, encompassing both emergency response capabilities and enduring health-system development. The WHO’s Ebola response roadmap estimates than an initial US$490 million in global resources over 6 months would be needed to curb the outbreak, although the total costs are likely to be considerably higher. What is needed is a standing crisis fund to ensure surge capacity in the event of a WHO declared Public Health Emergency of International Concern.
To prevent future epidemics, and to provide health services for the entire population, we also urgently need a sustainable International Health Systems Fund to build long-term capacity. This fund, however, would require multibillion-dollar investment. Although large, the international community has mobilized before on this scale through PEPFAR and the Global Fund.
The West African Ebola epidemic should spark a badly needed global course correction that would favor strong health infrastructure. It would encourage high-income countries to meet their International Health Regulations obligations to mobilize financial resources and provide technical land logistical support to develop, strengthen, and maintain public health capacity, especially in lower-income countries. Although the scale of investment would be substantial, it is a wise and affordable investment in containing global health hazards, and moving towards a right-to-health based universal health coverage