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Wrongful Birth after Dobbs and the Limits of Tort Law in Areas of Dissensus
Full text linkAs the abortion debate has raged in this country, a secondary debate over wrongful birth has accompanied it. Wrongful birth is a medical-malpractice-like claim brought by parents who allege that a medical provider negligently failed to provide accurate information about the fetus and that had they received accurate information they would have terminated the pregnancy. Courts rejected the tort theory until Roe v. Wade was decided. Post-Roe, courts were heavily divided over whether to recognize the claim and what damages were recoverable. Now, after Dobbs v. Jackson Women\u27s Health Organization, the continued viability of wrongful birth is in question, and the already chaotic nature of wrongful birth has become even more complex.
This Article examines wrongful birth and its criticisms before examining the effect Dobbs is likely to have on wrongful birth jurisprudence. It concludes that wrongful birth will remain unchanged in jurisdictions that do not restrict abortion. And it suggests analyses that might permit wrongful birth to remain viable in jurisdictions that ban abortion, though doing so concededly adds to the dissensus surrounding wrongful birth.
Most importantly, the Article examines why wrongful birth has resisted judicial consensus. Instead of simply blaming the heated abortion debate, it concludes that social dissensus about multiple issues makes regulating wrongful birth through tort law inappropriate. Recognizing and accepting the limitations of tort law that wrongful birth exposes is important given that other looming technological developments - such as artificial intelligence and transhumanist ideas to expand human capabilities-promise to raise again and again the same dissensus problem that wrongful birth highlights
Disinformation, Misinformation, and Democracy: Legal Approaches in a Comparative Context
No full textIn today\u27s digital age, the spread of dis- and misinformation across traditional and social media poses a significant threat to democracy. Yet repressing political speech in the name of truth can also undermine democratic values. This volume brings together prominent legal scholars from democracies worldwide to explore and evaluate different regulatory approaches for addressing this complex problem – all taking into account that the cure must not be worse than the disease. Using a comparative lens, the book offers important and novel insights into methods ranging from national regulation of politicians\u27 speech to empowering civil-society groups that are well-positioned to blunt the effects of disinformation and misinformation. The book also provides solutions-oriented recommendations for policymakers, judges, legal practitioners, and scholars seeking to promote democratic values by encouraging free political speech while combatting disinformation and misinformation. This title is also available as Open Access on Cambridge Core.https://scholarship.law.ua.edu/fac_books/1069/thumbnail.jp
The Readability of Contracts: Big Data Analysis
No full textThe plain language movement waged a silent revolution in the last generation, passing nearly 800 laws nationwide with little public debate. The movement asserted that it could scientifically show that there is a widespread readability crisis in legal documents, particularly contracts, that are unreadable to most adults. This article presents the largest empirical analysis of these claims to date, utilizing a dataset of 2 million contracts spanning multiple decades and industries and applying machine learning techniques. The study challenges fundamental tenets of the plain language movement. Contrary to prevailing beliefs, consumer agreements have median reading scores almost indistinguishable from those of daily news articles. A critical evaluation further exposes that readability tools endorsed by the movement are shoddy and manipulable and can produce grade-level differences of up to 4.6 years for identical texts. Moreover, the movement\u27s core belief that Americans cannot read past the level of an eighth grader is exposed as an unsubstantiated myth. These findings fundamentally challenge the premises and effectiveness of one of the central consumer protection policies. These results call for a radical rethinking of legal access strategies, suggesting a shift from superficial readability metrics to addressing substantive issues in market dynamics and focusing on truly vulnerable populations. More broadly, this case study serves as a cautionary tale about the propagation of myths in legal scholarship and the potential for well-intentioned reform movements to divert attention and resources from more effective interventions
Systematic Regulation of Artificial Intelligence
Full text linkToday\u27s artificial intelligence ( AI\u27\u27) systems exhibit increasing capabilities across a remarkable variety of tasks. The rapid growth in AI ability has caught the attention of policymakers, parliaments, and the United Nations. These entities are increasingly looking towards regulating AI, not only in its particular applications, but as a technology. Yet legal scholarship has thus far offered little to this new and critical regulatory conversation, which has instead been dominated by computer scientists and technologists.
This Article begins the project of assessing AI \u27s broader risks and law \u27s role in addressing them. These risks are wide ranging-they span harms to vulnerable communities, threats to economic, political, and physical security, and, in a worst-case scenario, even existential risk. The Article integrates a variety of emerging literatures to create a comprehensive account of the society-wide risks of AI, from present to future. It is also among the first works of legal scholarship to address the AI alignment problem and the global risks of failing to ensure that Ais are aligned with broad social interests.
Drawing on this taxonomy of risks, the Article provides a theoretical foundation for the systemic regulation of AI It addresses current debates about which AI risks to recognize and which deserve regulatory attention. It then considers the potential costs, benefits, and uncertainties of AI technology, concluding that they counsel a precautionary approach that regulates AI as a technology rather than focusing on its downstream applications.
Our final contribution involves outlining important principles for AI regulation. These principles map out a program of cohesive regulation, incorporating ex-ante oversight and employing a diverse set of regulatory approaches, including legislative and litigation-based strategies. We conclude by providing options for international regulation, drawing on prior examples from international law, and demonstrating that effective international collaboration around emerging technologies is feasible and important
Integrating Interference Theory
Full text linkRobust retaliation protections are an essential component of any effective enforcement regime. Recognizing this, Congress has included a provision prohibiting retaliation in nearly every workplace statute passed in the past century. In statutes more than a century old, like the Civil Rights Act of 1866, where Congress neglected to include an explicit anti-retaliation provision in the statutory language, the Supreme Court has found an implied proscription against retributory behavior. Anti-retaliation protections are undoubtedly integral to effective enforcement. However, they have an equally important counterpart that is often overlooked in compliance discussions-interference protections.
Several workplace statutes contain interference provisions-statutory language that makes it unlawful for employers to interfere with the substantive rights created by the statute. However, interference clauses are much less common than retaliation clauses. Compared to retaliation clauses, interference clauses appear to be a stronger mechanism for enforcing the regulatory scheme Congress has created for labor and employment laws. They enjoy broader judicial interpretation and have an analytical framework that makes it easier for employees to successfully prove employer misconduct given the information asymmetries that exist between companies and their employees.
This Article explores the origins of interference theory and investigates the presence of interference clauses in some statutes and their absence in others. It argues that, like they have interpreted retaliation proscriptions, the courts should interpret workplace statutes as containing implied interference prohibitions, as protections against interference with workplace rights is an essential component of compliance with any regulatory intervention. The Article further argues that Congress can broaden protections for employees, strengthen enforcement, and better support the goal of the statutory regimes by expressly including interference clauses in all workplace statutes
In Defense of (Some) Plant Rights
No full textThis book charts the multidimensional course of what has come to be known as the “Vegetal Turn” in environmental humanities - a wave of theoretical and practical interest in the complexities and peculiarities of plant life and plant-human relations.
The vegetal turn consists of increasingly sophisticated, inter- and trans-disciplinary, inter- and trans-cultural explorations of the multiple systems and networks of communication, intelligence, technical-operational capabilities, and relations articulated by and via plants - as well as the ethical, economic, cultural, and political dimensions of plant-human interactions and practices. The volume includes contributions from philosophy and the humanities more generally that explore and reflect on the history, prospects, and applications of four main themes that the Vegetal Turn has brought to general attention: the mind of plants, and what their peculiar mentality can tell us about mind more generally; plant personhood and/or moral standing, and the justifications and implications of attributions thereof; plant relationships with humans, plant-based human relationships, and the ethics of human practices with or regarding plants - from agriculture to the arts, from forest management to urban design ; as well as the rights and/or political representation of plant life and the other life-forms that depend on it, human as well as non-human, present and future.https://scholarship.law.ua.edu/fac_bookchapter/1074/thumbnail.jp
Truth Bounties: A Market Solution to Fake News
Full text linkFalse information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private.
This Article presents an alternative for fighting misinformation that avoids many pitfalls of regulation: truth bounties. We develop a contractual mechanism that would enable individuals, media, and others to pledge money to support the credibility of their communications. Any person could claim the bounty by presenting evidence of the falsity of the communication before a dedicated body of private arbitrators. Under the system we envision, anyone consuming information on the internet would know immediately ifa given communication had a bounty attached, whether the communication had been challenged, and whether the challenge succeeded orfailed. As John Stuart Mill recognized, we can trust our grasp of the truth only by putting it to the fire of challenge. Truth bounties open the challenge to all
Trial by Fire: Lessons Learned from Teaching Race and Evidence in a Hostile Environment
No full textThis companion volume to Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom features new essays, case studies, and bibliographies for law faculty seeking to bring critical perspectives on equity, inclusion, and social justice into their teaching in upper-level courses. Chapters focus on subjects traditionally tested on the bar exam, including evidence, criminal procedure, and family law, as well as professional responsibility.
Additionally, this volume includes guidance for teaching a range of other advanced law school topics and can be used in experiential courses, including advanced legal writing, legal research, counseling, and negotiations. It also features guidance and reflections from faculty who have created new courses specifically focused on race and social justice in the legal system. With submissions from over 40 authors, the collection is intended to spur valuable conversations within the classroom and across the legal academy.https://scholarship.law.ua.edu/fac_bookchapter/1070/thumbnail.jp
Inequitable Organ Allocation
Full text linkSeventeen people die every day in the United States waiting for an organ transplant, and over 100,000 people are currently on waitlists to receive a donated organ. Given these stark numbers, the allocation policies governing who receives donated organs are both critically important and hotly debated. Congress passed the National Organ Transplant Act in 1984 with the goal of eliminating markets for organs and the promise of equitable access to transplants without regard to geography or socioeconomic status. Despite these laudable goals, recent developments in organ allocation policy have led to multiple lawsuits, congressional inquiries, and an expose in the Washington Post.
Organ allocation policies developed over the past decade have increasingly mandated broader organ sharing across the country so that organs are less likely to be transplanted into nearby recipients. Analyzing a series of public and restricted-use datasets that include information on all organ donations, transplants, and waitlist registrations, I find consistent empirical evidence that organ allocation policy fails to achieve its goals. First, the metrics used to rank patients by medical urgency have been manipulated, particularly for heart and liver transplant candidates. Next, I find that socioeconomic inequities persist within organ allocation, with the income needed to receive an organ transplant increasing year-over-year(after adjusting for inflation).
Finally, I find that organ allocation policy has systematically ignored large swaths of the population and thereby impeded access to organ transplants. To estimate the degree to which allocation policy has ignored individuals in need of transplants, I develop a new population-based metric of need for organ transplants-transplant amenable deaths. These deaths include all those that could have potentially been avoided by the timely receipt of a transplant. Analyzing these deaths, I find evidence that parts of the country with the greatest need for transplants are routinely required to export their organs to other wealthier and more urban parts of the country with less need for transplants.
Transplant amenable deaths also offer an avenue of reform and the chance to achieve equitable access to organ transplants: I propose that new organ allocation policies be cabined by their impact on transplant amenable deaths so that these deaths are evenly spread across the country. Doing so can ensure organs go to areas where they are most needed while also allowing the most urgent patients to receive organs first. Such a distribution would also mitigate socioeconomic disparities