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“To See or Not to See: the Supreme Court’s Constant Struggle with the Constitutionality of Race-Conscious Affirmation Action Policies Post-Brown.”
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A Holistic Overview of the Data Act, Its Implications on the Economy and Interplay with the GDPR
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The European Union’s Leadership in Regulating Artificial Intelligence: The Danger in Allowing U.S. Corporations to Self-Determine That Their Chosen AI Systems Do Not Fall Within the High-Risk Category
No full textRole Call: Can a Backbench Legislator Practice as a Criminal Defence Lawyer? A Legal Ethics Analysis
No full textLegislators come from a range of backgrounds. Many legislators happen to be lawyers. Parliamentary rules typically allow legislators who are not members of Cabinet to practice a profession part-time. However, the part-time practice of law poses special legal ethics challenges. In this article, we consider the legal ethics issues that arise when a backbench legislator of the governing party practices criminal defence law part-time. We argue that such a dual role engages three serious, unavoidable, and perhaps even unresolvable legal ethics issues. The first issue is the time constraints imposed by outside interests. The second issue is conflicts of interest, specifically the risk that the legislator-lawyer may favour their political future over their clients’ interests by soft-peddling their advocacy to avoid embarrassing the government. The third issue is the duty to encourage respect for the administration of justice, i.e. the risk that Crown prosecutors may be, or perceived to be, pressured to give lenient treatment to the legislator-lawyer’s clients due to the possibility of retaliation. Thus, we recommend that legislators avoid this situation and law societies actively consider these issues
Causation’s Due Process Dimensions
No full textFor decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has significant implications for evaluating the constitutionality of tort doctrines like market-share liability and innovator liability, which challenge traditional notions of causation. Our analysis reveals that these doctrines may be vulnerable in some applications to constitutional challenge under the Court’s modern due process approach. We trace the evolution of the Court’s jurisprudence, demonstrating how it emphasizes the relationship between plaintiff’s harm, defendant’s conduct, and the forum state’s interest. Applying this framework to market-share and innovator liability, we suggest that causation itself may have constitutional dimensions. This finding has far-reaching implications for mass tort litigation and could reshape how courts approach cases involving multiple actors and attenuated chains of causation. By bridging the gap between due process jurisprudence and tort law, this Article offers a new perspective on longstanding debates about liability in complex cases and provides a roadmap for courts navigating these challenging waters
Health Care Corporatization as a Catalyst for Wellness Legal Partnerships
No full textThe increasing presence of private equity investment in physician practices reveals that current health law practice sites such as in-house, corporate law firms, and Medical Legal Partnerships (MLPs) are ill equipped to address patient harm from health care corporatization. A new type of health law practice is needed to address the adverse impact health care corporatization is having on health care purchasers (primarily employers and patients) and physicians. I label this new health law practice the Wellness Legal Partnership (WLP), modeled after the Medical Legal Partnership (MLP). WLP lawyers can look to systems leadership theory, lawyer fiduciary duties, and health justice frameworks as guides to combat the adverse impacts of health care corporatization. WLPs would work best rooted in corporate health and wellness benefit settings and they would improve patient wellbeing using a three-fold approach of individual advocacy, organizational change, and systemic change
No More Wild West: The Need for Wellness Professional Standards
No full textThe burgeoning wellness industry attracts a lot of practitioners who are largely unregulated. This “wild west” of wellness creates uncertainty for insurers, employers, consumers and practitioners as to what services and items wellness practitioners can offer, whether those practitioners are qualified and whether they behave in an ethical manner. Some guideposts for these wellness stakeholders would be welcome and may reduce consumer harm. Guideposts for wellness is especially crucial in a time when the Braidwood v. Becerra case threatens the delivery of preventive care services by the health care sector. As we have learned from the health care sector, the state licensure scheme is confining and not conducive to national practice, particularly in the wake of virtual platform technology. Thus, instead of state licensure, this article proposes a private Standard Development Organization (SDO) scheme that can create and enforce standards within the wellness industry
Countering Workplace Wellness Bias through Wellness-Legal Partnerships
No full textIn the current United States economy, wellness is predominantly marketed to society’s privileged individuals, catering to a mostly white and high-income clientele. When marginalized communities encounter wellness services, such as in the workplace, they are faced with an Implicitly biased industry. These biases include an emphasis on individual behavior change without considering social determinants of health (SDOH), cultural appropriation of wellness activities for capitalistic gain, use of biased health measures like Body-Mass Index (BMI) and constant images of and expectations of achieving a stereotypical healthy body. The legal community must wake up to these biases and advocate for more equitable wellness services. Wellness-Legal Partnerships (WLPs) are one type of tool that lawyers can use to address inequities baked into current workplace wellness programming. Specifically, lawyers can create WLPs through existing Employee Assistance Programs (EAPs) at Certified B Corporations to address SDOH. Part I of this paper explores the current state of the wellness industry and how the biases of emphasizing individual behavior, cultural appropriation of wellness activities, use of BMI and broadcasting the stereotypical healthy body image adversely impact historically marginalized people. Part II examines workplace wellness programs and how those programs not only incorporate the biases prevalent in the wider wellness industry, but how workplace wellness laws under the Affordable Care Act (ACA) and the Americans with Disabilities Act (ADA) arguably encourage them to do so. Part III explores the history and legal framework of EAPs and their current use by employers and employees. Part III introduces the concept of WLPs by describing the WLP role model, Medical-Legal Partnerships (MLPs) and how WLPs can adopt many of the same MLP concepts and apply them to workplace wellness programs. Then, this Part offers a roadmap on how to start implementing WLPs in workplace wellness programs to demonstrate how these partnerships can not only address SDOH faced by employees, but also offer broader advocacy services by lawyers dedicated to addressing the multiple biases that currently exist in wellness services