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Parental Rights: Rhetoric Versus Doctrine
No full textProfessor Josh Gupta-Kagan observes that the Restatement of Children and the Law does not transform the law of child abuse and neglect. As he contends, this is neither a feature nor a bug. It is simply the reality of a restatement, which can only nudge, not reform, the law. I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars — including both of us — who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem for law reform. But the nature of a restatement is to restate.
Notwithstanding this inherent constraint, I want to underscore one aspect of Gupta-Kagan’s argument and suggest that the Restatement does more than may first meet the eye. Gupta-Kagan applauds the Restatement’s embrace of parental rights for families facing coercive state intervention through the family regulation system. He demonstrates that at several doctrinal forks, the Restatement relies on parental rights to choose the rule that is more protective of family integrity. As Gupta-Kagan shows, by emphasizing these rights, the Restatement reinforces the doctrinal shield that helps protect marginalized families from state intervention. I second the value of this shield, but in my view, the Restatement does something else as well
Systemic Failures in Health Care Oversight
No full textHospitals are intentionally shirking their duty to identify and report incompetent medical practitioners, and it is causing catastrophic injuries to patients. Why are hospitals doing this? Two decades of health care reforms have changed the way physicians and hospitals interact in the U.S. health care system, and as a result, the traditional health care oversight tools no longer work to ensure physician competence. With three out of four physicians now employees of hospitals or health care systems, hospitals have become the guardians of both the internal and external warning systems designed to flag incompetent practitioners. As the guardians, hospitals are required to report incompetent practitioners to the National Practitioner Data Bank (NPDB), the main quality control tool used to identify and weed out incompetent physicians. Hospitals, however, are intentionally circumventing their reporting requirements to avoid institutional embarrassment, medical liability, and physician alienation. This negatively impacts the ability of the more than 24,000 entities that query the NPDB to effectively determine whether a practitioner is competent for purposes of licensing, hiring, and credentialing. This Article offers a solution—switch the data bank from a blacklist of incompetent providers to a database of the employment and hospital affiliation histories for all medical providers. Have the NPDB or private accreditation organizations require hospitals complete a mandatory questionnaire for all practitioners during the credentialing process. Implementing this solution will achieve three salient objectives: (1) improve the process whereby hospitals investigate whether a medical practitioner is competent to practice medicine prior to hiring or offering the practitioner privileges; (2) pave the way for state-based tort claims to hold hospitals accountable for inaccurate disclosures regarding a practitioner’s competence to practice medicine; and (3) eliminate the stigma associated with being listed in the NPDB which causes practitioners to practice defensive medicine and avoid admitting mistakes
Redefining the Injury-in-Fact: Treating Personally Identifying Information as Bailed Property
No full textThere is a long-existing circuit split among federal courts of appeals as to whether an individual has standing under Article III of the United States Constitution when their personally identifying information (PII) is stolen from an entity to which they entrusted it such as a hospital or bank. Federal courts disagree as to whether an individual whose PII has been stolen—without more—has suffered an injury-in-fact, a necessary element of standing. The disagreement between the courts centers on whether the injury-in-fact has already occurred at the time the PII is stolen or whether the injury occurs once the PII has been used for some harmful purpose, such as identity theft or fraud. Essentially, the question is whether the injury alleged is speculative. This Note advances the theory of bailment as a solution to whether the injury-in-fact has occurred. Under this approach, customers who give their PII to an entity will be treated as bailors and the entities will be treated as bailees. This approach would effectively redefine the injury to be treated as a breach of bailment. This solution is best achieved through Congressional action pursuant to its interstate commerce powers. Through legislative action, a comprehensive scheme may be put into place that not only creates bailments, but also provides for statutory damages. Statutory damages will account for lack of evidence of economic harm and the willfulness of the bailee’s conduct
Early Arrival Event: Careers in National Security Law
No full textDuke\u27s Center on Law, Ethics and National Security (LENS) is sponsoring a panel entitled Careers in National Security La
Holding the Taliban Accountable for Gender Persecution: The Search for New Accountability Paradigms under International Human Rights Law, International Criminal Law and Women, Peace, and Security
No full textIn this paper, I will examine the legal standards of gender persecution and the evolving descriptor gender apartheid as a way to describe the status of women in Afghanistan. The paper also examines other complementary forms of legal accountability procedures to vindicate Afghan women’s rights and hold perpetrators accountable under crimes against humanity. Although the current locus of the paper is focused on Afghan women, it has larger implications for all other crimes of gender persecution
Closing remarks
No full textClosing remarks: Maj Gen Charlie Dunlap, USAF (Ret.), LENS Executive Directo
Accountability Courts in Georgia: Judges in the State of Georgia Explain How They Have Been Empowered by Visionary Political and Judicial Leaders to Tackle Crime, Prison Population, Mental Illness, and Drug Dependency Through Service in Accountability Courts
No full textGeorgia leads the way nationally when it comes to promoting and funding the expansion of accountability courts (commonly called drug courts or mental health courts). The fact that the effort to expand such courts in Georgia was spearheaded by Republican Governor Nathan Deal is surprising to some. This article provides a peek behind the curtain at the massive judicial and political effort to make accountability courts an essential part of criminal justice reform in the State of Georgia.
The article begins with a brief look at the history of accountability courts in Georgia, specifically focusing on several Superior Court Judges who were pioneers in establishing such courts. One of those judges was Jason Deal whose father, then Congressman Nathan Deal, would often visit Judge Deal\u27s court. The article, sourcing primarily interviews from several Superior Court Judges involved in the formation of the Georgia Council of Accountability Courts (GCAC), provides an account of how approximately six Superior Court Judges, with the support of newly elected Governor Deal and then Speaker of the House David Ralston, developed a plan. This plan was ultimately adopted by the Georgia Legislature to fund accountability courts in Georgia on a grand scale. The article also explains the events that led to the creation of GCAC, a nationally unique governing body for Georgia\u27s accountability courts. A synopsis of GCAC operating procedures and certifications is provided as it relates to the several types of accountability courts now codified in Georgia.
Most importantly, the article provides insight from several judges who operate accountability courts in Georgia. Specifically, the article provides first‑hand accounts of the operations of accountability courts from the following judges: Judge Jason J. Deal of the Northeastern Judicial Circuit; Chief Judge Brenda S. Weaver of the Appalachian Judicial Circuit; Chief Judge D. Scott Smith of the Cherokee Judicial Circuit; Chief Judge T. Craig Earnest of the Pataula Judicial Circuit; Judge Katherine K. Lumsden of the Houston Judicial Circuit; Judge Melanie B. Cross of the Tifton Judicial Circuit; Judge Brian A. McDaniel of the Southern Judicial Circuit, and; Georgia Supreme Court Justice Verda M. Colvin, formerly of the Macon Judicial Circuit. These jurists demonstrate an unwavering commitment to public service and offer personal testimonials as to the manner in which accountability courts touch the lives of Georgians who are in desperate need of help.
Finally, the article touches on the financial implications flowing from Georgia\u27s support of accountability courts. The legislature and Governor Brian Kemp continue to be very supportive of accountability courts. Taylor Jones, the Executive Director of GCAC, has been instrumental in growing GCAC and garnering Georgia’s continued commitment to accountability courts. As a result, Georgia has received a financial windfall because of the success of the courts in terms of reduced recidivism, reduction in the costs of imprisonment, and a reduction in societal costs associated with untreated substance abuse and/or mental health issues. Millions of dollars have been saved, families have been restored, and Georgia has shown other states the benefit of promoting accountability courts because of Georgia\u27s efforts in providing treatment, when appropriate, to those charged with criminal offenses.
—Judge W. James Sizemore, Jr
