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Understanding the Role of Law in Reducing Firearm Injury through Clinical Interventions
No full textFirearm injury in the United States is a public health crisis. Approximately 38,000 people are killed, and 73,300 people are injured, by firearms each year in the United States.1 Between 2014 and 2018, firearm suicide rates increased by 10% in the past five years, while firearm homicide rates increased by 25%. Americans have a significantly higher risk of firearm injury compared to citizens of other high-income countries. Physicians are uniquely situated to act as upstream interveners to prevent firearm injury. They can identify patients at risk of harming themselves or others as well as patients at risk of being harmed by firearm violence. However, their ability to mitigate harm is limited. Laws and regulations that shape physicians’ roles in the context of firearm injury prevention interact in complex ways, and, in many cases physicians are unaware of, or have misconceptions about, how and whether these laws affect their clinical practice.
Using clinical scenarios to illustrate how firearm laws and regulations interact to directly impact physicians’ abilities to reduce firearm-related harms, this article suggests not only that physicians and other healthcare providers require more nuanced education on this topic, but also that policymakers should consult with front-line healthcare providers — just as they consult with other stakeholders — when designing firearm policies
Gun Trust as Private Red Flag Law
No full textRed flag laws are highly controversial. Such laws create a .process to remove guns from people deemed too dangerous to possess them. Perhaps surprisingly, two-thirds of gun owners favor red flag laws. APM Survey: Americans' Views on Key Gun Policies (Aug. 20, 201 9), https://bit. ly/2UxXLHI. Eighteen states and the District of Columbia have red flag laws (Giffords Law Center, Extreme Risk Protection Orders (visited Mar. 3, 2020), https://bit.ly/2UUtaTT), but gun owners in every state may be well-advised to craft their own means of protection. Under current law, a properly-drafted gun trust can provide red-flag-like protection and protection against formal red-flag orders
The Public Values of Repatriation in the Native American Graves Protection and Repatriation Act
No full textThis Note examines the implementation of the Native American Graves Protection and Repatriation Act and finds that repatriation has generated significant public benefits by making collecting institutions better fulfill their role as stewards and researchers. This is contrary to existing critiques of cultural property laws that argue that repatriation is a compromise by the public to benefit minoritarian groups. This Note argues instead that stronger repatriation laws may be better for all of us
Narrating Context and Rehabilitating Rehabilitation: Federal Sentencing Work in Yale Law School's Challenging Mass Incarceration Clinic
No full textThe Challenging Mass Incarceration Clinic (CMIC) at Yale Law School has been representing clients in federal sentencing and state
postconviction cases since 2016. Drawing on a blueprint I set forth in a 2013 article, the clinic teaches a model of noncapital sentencing practice that builds on the best capital defense sentencing practices and seeks to transform judges' and prosecutors' assumptions about criminal sentencing.
In this article, I set forth CMIC's theoretical underpinnings and detail our interdisciplinary, trauma-informed approach to sentencing
advocacy and clinical practice. I then describe CMIC's case outcomes, including variances which have reduced each of our clients' prison time an average of five years below the United States Sentencing Guidelines range and more than 18 months below prosecutors' recommended sentences. CMIC's work has also produced innovations to traditional client-centered, holistic lawyering; enhanced approaches to working with experts; and yielded insights into the incorporation of defense-based victim outreach in appropriate cases.
Our experiences in CMIC raise several areas for future research, including whether the model will produce the kind of fundamental
sentencing reform I predicted in my earlier work, and questions about fairness, risks, data, and scalability. I am publishing this article with the hope and intention that other law school clinics will borrow from and improve on CMIC's model
Pharmacy Benefit Managers, Rebates, and Drug Prices: Conflicts of Interest in the Market for Prescription Drugs
No full textPharmacy benefit managers (PBMs) manage the drug benefits for over ninety percent of Americans with prescription drug coverage. However, conflicts of interest inherent in the PBM business model create perverse incentives for drug price increases. The most significant conflict of interest arises from manufacturer rebates paid to PBMs. PBMs negotiate rebates from drug manufacturers in exchange for giving the manufacturers’ drugs preferred status on a health plan’s formulary. Because the rebates paid to PBMs are typically a percentage of a drug’s list price, drug makers are pressured to increase list prices in order to satisfy PBMs’ demands for higher rebates. Although a portion of the increasing rebate dollars may eventually find its way to patients in the form of lower co-pays, many patients still suffer from the list prices increases. This Article analyzes various proposals to rein in PBM rebates and asserts that, compared to the other proposals, a partial point-of-sale rebate system maintains many of the benefits of selective contracting while minimizing incentives to increase drug list prices
Modernizing Bank Merger Review
No full textSixty years ago, Congress established a federal pre-approval regime for bank mergers to protect consumers from then-unprecedented consolidation in the banking sector. This process worked well for several decades, but it has since atrophied, producing numerous “too big to fail” banks. This Article contends that regulators’ current approach to evaluating bank merger proposals is poorly suited for modern financial markets. Policymakers and scholars have traditionally focused on a single issue: whether a bank merger would reduce competition. Over the past two decades, however, changes in bank regulation and market structure—including the repeal of interstate banking restrictions and the emergence of nonbank financial service providers—have rendered bank antitrust analysis largely obsolete. As a result, regulators have rubber-stamped recent bank mergers, despite evidence that such deals could harm consumers and destabilize financial markets
Locked In and Locked Out: Applying Charming Betsy to U.S. Felony Disenfranchisement
No full textThis Note argues that the United States’ practice of disenfranchising people with felony convictions runs counter to modern human rights law as expressed in the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Although these treaties are non-self-executing, I suggest that they can be marshaled in the fight against felony disenfranchisement in conjunction with the Charming Betsy canon to support interpretations of vague state disenfranchisement statutes—and, indeed, constitutional provisions—that accord with the United States’ international obligations. By demonstrating how these treaties might aid the interpretation of ambiguous disenfranchisement laws, I offer a judicially driven solution to a pressing issue in criminal justice reform
A Unified Constitutional View of Financial Punishment: Synthesizing the Excessive Fines Clause and Bearden-Based Protections
No full textThis Note coordinates the Eighth Amendment Excessive Fines Clause with the Fourteenth Amendment wealth-discrimination protection set forth in Bearden v. Georgia. It is generally assumed that the two protections operate independently: while the Excessive Fines Clause protects individuals against exorbitant financial obligations, Bearden limits the state from converting criminal debt into a severe liberty deprivation. But in recognizing how the two doctrines are normatively and functionally reinforcing, this Note proposes a single framework for considering financial punishment’s constitutionality. If the Eighth Amendment protection applies at the imposition of a financial punishment, Bearden provides a “second look” at the constitutionality of that punishment. Or, put another way, the Eighth Amendment is a preemptive look at the downstream poverty-based liberty deprivations that Bearden secures individuals against. Appreciating this relationship affords additional authority to both protections, and suggests a number of improvements to existing safeguards
Habit Forming: Evidence of Physician Habit in Medical Negligence Litigation
No full text”Habit” is a time-honored component of the law of evidence. Habit evidence is generally understood as specific conduct which occurs repetitively, over a period of time, in response to a known stimulus. Habitual conduct is also thought to be non-volitional, suggesting that it encompasses conduct without thought. This paper focuses on whether the practice of medicine is, in any respect, “habitual.” Are medical negligence litigants, plaintiffs and physicians, entitled to introduce evidence of physician habit to demonstrate deviation from or compliance with the applicable standard of care? Is the practice of medicine entirely volitional and judgmental, such that classic habit evidence is inapplicable to medical negligence litigation? This Article addresses these topics in an effort to identify the various positions adopted by courts in the United States and recommends that courts receive physician habit evidence in medical negligence trials