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Taiwan\u27s Medical Injury Law in Action
Get PDFTaiwan’s healthcare system, lauded internationally for its universal insurance coverage, moderate costs, and high quality of care, has one significant group of detractors: its physicians. Overworked, squeezed financially by the nation’s global budgeting system’s annual payment restrictions, and oppressed by both criminal prosecutions and civil malpractice actions, doctors and hospitals raised criticisms that culminated in legislative reforms enacted in 2017 and 2022. Are the reforms making any difference?
This Article offers the first comprehensive examination in English of how Taiwan’s medical injury law works. The Article is based on interviews with judges, attorneys, physicians, scholars, and other citizens, literature reviews, government statistics and statistical analyses of court decisions.
We set out statutory grounds for, and a procedural overview of, Taiwan’s medical malpractice litigation – both criminal and civil, accompanied by numerical litigation trends and comparisons with practice in Japan, the US, and European nations. We introduce five key aspects of Taiwan’s medical injury law in action: (a) the connection between criminal and civil claims, a structure giving criminal complainants various advantages to the dismay of the medical profession; (b) informed consent doctrine and practice; (c) third-party expert assessments as key evidence; (d) the burgeoning use of alternative dispute resolution to avoid litigation; and (e) the role of administrative public injury compensation funds. After an overview of the system’s economics and judicial decisions, we discuss the politics behind recent reform efforts.
Our conclusions: The 2017 reforms appear to have had little influence on judicial outcomes, but the 2022 reform, when implemented, is expected to improve claims resolution through restructured mediation practices. Physicians’ dismay about the legal system, at least, is somewhat alleviated. Taiwan’s medical injury law has approached a state of equilibrium
Regulating Driving Automation Safety
Get PDFOver forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting with a novel regulatory strategy. Instead of setting standards, the agency is using its statutory powers in unprecedented ways—ordering automation developers to report crashes daily and directing rapid recalls that require changes to defective software. NHTSA is betting that intense monitoring and the credible threat of recalls will push developers to prioritize safety. This Article argues that NHTSA’s experimental strategy could be transformed into effective safety regulation. Regulators should (1) require that all new vehicles be equipped with telematics that can send safety data and receive software updates over the air; (2) mandate universal crash reporting; and (3) use recalls to force developers of driving automation systems that create unreasonable risks to restrict where their systems can operate until they can develop safer code
Diamonds (and War Crimes) are Forever: Creating a Time-Immune Framework for the Repatriation of Stolen Cultural Heritage Objects Applying Pillage Principles
Get PDFThere is a long global history of invading countries laying claim to the cultural heritage object of the states they conquer. In the modern age, there is some international law in place to govern the repatriation of misappropriated (stolen) cultural heritage items. However, none of the applicable conventions is retroactive, rendering them ineffective concerning all objects misappropriated prior to 1954. Given the timing of globalization and global colonization practices, this means that the range of object to which existing international law applies is very limited indeed. This comment proposes a new legal framework for repatriation of cultural heritage objects incorporating timing principles from pillage law to counteract this lack retroactivity in contemporary international law in the case of certain qualifying artifacts.
The proposed framework requires a two-prong analysis, the goal of which is to determine on a case-by-case basis if an item is both a cultural heritage artifact and a pillaged good. The problems of lack of retroactivity in contemporary international law and the workings of the newly proposed framework can be vividly illustrated using the Darya-i-Noor, a famous, massively valuable pink diamond with a fascinating history originating in India and seized by Iran.
This publication is a shortened version of the original article which contains a second case study focusing on the Koh-i-Noor diamond and incorporates analysis of English possession. The full version is available on request to the author
Access to Justice: A Roadmap to Creating and Launching Consumer Bankruptcy Experiential Programs in Law Schools
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Fire and Federal Power: Defining the “Furthest Reaches” of the Property Clause
Get PDFWildfires pose an immense and escalating threat to national forests. In addition to rising temperatures and accumulating fuels, rapid development of the wildland-urban interface (WUI) has exacerbated wildfire risk by putting more people and property in harm’s way and increasing the likelihood of human-caused fires. While restrictions on WUI development would reduce wildfire risk, varying political and economic pressures have caused substantial variation in how local governments regulate the WUI. Some governments have implemented stringent regulations, while others have permitted unbridled expansion. Such disjointed regulation acutely impacts national forests because WUI homes and communities are often clustered around them. Thus, to effectively protect the nation’s forests from wildfire, a more uniform approach to WUI regulation is necessary. This Comment contends that the Property Clause provides Congress authority to take such an approach.
Specifically, this Comment argues the Property Clause grants Congress authority to regulate WUI development on state and private land adjacent to national forests because—by increasing wildfire risk—such development interferes with the purposes for which Congress established those forests. Most importantly, WUI development and the concurrent rise in wildfire risk interfere with national forests’ timber supply and watershed protection functions—the forests’ original and primary purposes.
While the Property Clause grants Congress immense authority to regulate federal land—and in some cases, nonfederal land—how far that power goes is an open question. The Supreme Court has yet to define the “furthest reaches” of the Property Clause, but its cases suggest useful principles that may help discern those limits. Building on these cases, this Comment proposes a rule to clarify the limits of the Property Clause as it relates to Congress’s ability to regulate activities on nonfederal land. Specifically, the rule proposed here provides that Congress may use its Property Clause authority to regulate activities on state and private land if the regulated land is adjacent to the federal land Congress seeks to protect, and the regulated activity substantially interferes with the federal land’s primary purpose. If so, then the regulation should be considered a “needful rule respecting public lands” and therefore a lawful exercise of Congress’s Property Clause power
The Communication Conundrum: Weighing the Need to Prove Intent in ERISA Misrepresentation Claims
Get PDFIn 1974, Congress enacted the Employee Retirement Income Security Act (ERISA) to provide oversight to voluntary employee benefit plans in the private sector. The statute, which draws from a deep well of common law history, places robust requirements on fiduciaries who safeguard such plans. Shortly after ERISA’s enactment, courts were forced to interpret the broad fiduciary duties set forth in 29 U.S. § 1104, which simply mandates that fiduciaries must discharge duties solely in the interest of the participants and beneficiaries. Considering this broad language, courts set out to define specific standards to which fiduciaries should be held, particularly surrounding miscommunications.
Circuits split on the issue. Some circuits decided that fiduciary misrepresentation liability demands a tort-like standard akin to fraud with a showing of intentional deceit, while other circuits, citing to the statute’s roots in the common law of trusts, determined that intent was inconsequential for misrepresentations. Complicating the matter, the Supreme Court has declined to rule on unintentional miscommunications, allowing the split to widen. The resulting inconsistency is staggering, with some circuits allowing recipients to recover for accidental miscommunications and others barring recovery for flagrantly negligent misinformation.
This Comment offers a critical analysis of both the tort and trust approach to ERISA fiduciary liability and recommends a variation on the trust approach to resolve the discrepancy. This Comment analyzes why courts, high and low, have been hesitant to follow the law of trusts standard uniformly and acknowledges that the trust standard may expose employers to heightened liability. At the same time, this Comment emphasizes how the alternative tort standard often bars employees from the very plan protection that ERISA seeks to cement. To analyze both approaches diligently, this Comment traces ERISA’s common law of trusts roots, initial circuit splits, and Supreme Court cases that failed to instruct firmly on how to approach unintentional misrepresentations. This Comment also discusses more recent circuit splits, tracing how judicial benefit enforcement grows inconsistent as the split widens. Finally, to encourage a compromise between the two approaches, this Comment urges Congress to cast aside the issue of intentionality altogether and focus on the miscommunication’s materiality
Criminal Recordkeeping
Get PDFBusiness managers must create and keep records for decision-making. Yet doing so presents an obvious problem for those who manage illegal businesses: their records would make for powerful evidence in the hands of prosecutors. That problem raises a question—why would one knowingly create and keep such records when their mere existence risks detection and sanction? The answer, in short, is that the interaction of illicit activity’s complexity and continuity compels recordkeeping. A business, including a criminal one, cannot be managed without adequate information about its operations, obligations, and condition. Just how complex and long-lived its affairs are will drive the scale and scope of its recordkeeping requirements. Beyond these high-level intuitions, this Article contributes a theory of how the trueness or falsity of criminal business records, as well as the organizational settings in which they occur, shape their managerial uses and associated criminal-legal risks. This theory in turn yields principles for deterring illicit activity in organizations. When such activity is the kind enabled by recordkeeping, it can be prevented, or at least mitigated, by policies that inhibit the production of business records. It can also be countered by policies that encourage those records’ retention. Despite the contradiction implied by these two principles, together they promote ex ante deterrence and ex post detection and sanction. Although such interventions can be directed at any organizationally complex and long-lived illicit activity, their greatest promise is in informing compliance policies, practices, and programs in licit organizations (like large corporations) that already are obliged, or that seek, to proactively prevent law violations
Separation of Structures
Get PDFThis Article makes three main contributions. First, it fleshes out the theory of separation of structures as distinct from contemporary scholarly approaches. Second, it writes the intellectual history of separation of structures, which has been an integral part of the separation of powers enterprise since its inception, including at the Founding. Third, it explores the scholarly and doctrinal implications of structural separation of powers. In particular, adjudicating the constitutionality of agency structures requires methodological pluralism that incorporates the normative values underlying the structural design. That is, under separation of structures, current doctrine should evolve beyond the formalism heavily criticized by scholars. This structural framework thus provides a limiting principle to the doctrine of Free Enterprise Fund, Seila Law, and Collins v. Yellen. Further, congressional delegation to agencies cannot be conceptualized as a violation of separation of powers on the sole ground that delegation allows executive branch agencies to exercise legislative power. Instead, advocates of a muscular nondelegation doctrine often fail to recognize that agency structure can mitigate potential violations of functional separation of powers. Both implications are urgent in today’s doctrinal milieu. Not only does the Court continue to entrench its agency-structure jurisprudence—it appears poised to extend the nondelegation doctrine
A New Great Awakening of Religious Freedom in America
Get PDFWhile loud criticisms of religion continue to clatter in the media and the law reviews, the U.S. Supreme Court has led a great awakening of American religious freedom. In more than two dozen cases since 2011, the Court has used both the First Amendment and federal statutes to strengthen the rights of religious organizations to make their own internal decisions about employment and employee benefits. The Court has held that some forms of government aid to religion and religious education are not only permissible under the Establishment Clause, but also required under the Free Exercise and Free Speech Clauses. The Court has used the Free Exercise Clause to enjoin several public regulations and policies that discriminated against religion, that penalized parties for taking religious stands, or that coerced parties to act contrary to their conscience. The Court has strengthened both the First Amendment and statutory claims of religious individuals and groups to gain exemptions from general laws that substantially burdened their conscience. The Court has used religious freedom statutes to give new protections to Muslim prisoners and insisted that death row inmates have access to their chaplains to the very end. The Court has even allowed the collection of money damages from government officials who violated individuals’ statutory protections of religious freedom.
These two dozen recent cases signal a marked return to America’s founding axiom that religious freedom is the first freedom of our constitutional order, not a second class right. The eighteenth-century founders’ vision was that religion is more than simply another form of expression and association; it deserves separate and special constitutional treatment. The founders thus placed the guarantee of freedom of religion before the freedoms of speech, press, and assembly in the First Amendment. That gave both religious individuals and groups special protections for their faith claims. All peaceable exercises of religion, whether individual or corporate, private or public, traditional or new, popular or reviled, properly deserve the protection of the First Amendment. The current Supreme Court has seized on this traditional teaching with new alacrity