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Guerras de conciencia en las Américas
No full textAlrededor del mundo, sujetos y entidades pertenecientes a los sectores p blico y privado est on invocando la conciencia como base para objetar leyes o decisiones judiciales que confieren derechos reproductivos a la poblacion LGBT y a otras/os ciudadanas/os. Las objeciones de conciencia que se dan en el contexto de las guerras culturales respecto de derechos reproductivos y LGBT, difieren de las situaciones paradigm ticas en las que se conceden excepciones al cumplimiento de la ley, donde alguien de una religion minoritaria busca observar un ritual religioso o vestirse conforme a su religion, en violacion a leyes generalmente aplicables. En cambio, el otorgamiento de objeciones de conciencia que se da en el contexto de las guerras culturales puede causar da os significativos a terceros e imponer visiones tradicionales a ciudadanos/as cuyos derechos han sido
recientemente protegidos por la ley.
La contribucion de este trabajo es pr ctica y cr tica. Por un lado, ofrecemos una gu a para mostrar c mo el Gobierno puede promover el pluralismo a trav s de proveer excepciones a la ley para objetores y al mismo tiempo protege a ciudadanos/as que pueden verse afectados/as. Por otro lado, consideramos que cuando el Gobierno protege la conciencia en un marco que no preserva los derechos de otros/as ciudadanos/as, podra estar utilizando la objecion de conciencia para crear un orden jur dico de facto en favor de las creencias de los objetores
Law and the Unconscious: A Psychoanalytic Perspective
No full textThe following essays reflect on Professor Anne Dailey’s challenge to the presumptions of rationality in law in light of all we now know today about the unconscious. The authors draw from a wide array of perspectives ranging from the classroom to poetry
Anti-Segregation Policing
No full textConversations about police reform in lawmaking and legal scholarship typically take a narrow view of the multiple, complex roles that policing plays in American society, focusing primarily on their techniques of crime control. This Article breaks from that tendency, engaging police reform from a sociological perspective that focuses instead on the noncriminal functions of policing. In particular, it examines the role of policing in the daily maintenance of racial residential segregation, one of the central strategies of American racial inequality. Unlike previous work that touches on these issues, this Article argues that police reformers and police leaders should adopt an anti-segregation approach to policing. It also offers legal frameworks and policy prescriptions that flow from an anti-segregation ethic in police governance.
This Article begins by setting forth a rich account of residential segregation, clarifying the distinction between easily measurable proxies for segregation and the type of segregation with which law and policy should be concerned: the spatial separation that confines, subordinates, and dominates. It then identifies and illustrates six mechanisms through which American policing perpetuates residential segregation, drawing from sociological research, including qualitative narratives collected in
Dallas County, Texas; Cuyahoga County, Ohio; and Baltimore, Maryland. Next, the Article sketches the architecture of anti-segregation policing, offering legal frameworks based on fair housing law and federal and state consent decrees, as well as a non-exhaustive set of practical approaches police departments could take to advance an anti-segregation agenda. Finally, the Article engages a fundamental question central to police transformation movements today: Is meaningful police reform, including anti-segregation policing, possible in a society that is structured through race
Decisional Humility and the Marginally Represented Patient.
No full textThere was a cartoon circulating during the national debate about Terri Schiavo (Davies for the Journal News 2003). A couple is seated in a lawyer’s office with their attorney seated behind a desk. On the wall next to a diploma is a sign advertising living wills.
The caption from one of the clients is “…& in the event that either of us is being kept alive by artificial means, we don’t want Jeb Bush to get involved.” The couple clearly do not want the state or bureaucrats stepping in and imposing their judgment in this private realm when they have lost decisional capacity. And yet that seems to be the default position offered by Dr. Berger (2020) in his argument about what he terms representedness. As we see the argument, he wants to deny non-intimate surrogates, family members of standing the opportunity to engage in surrogate decision making and seemingly substitute a cadre of well-meaning, well-intended bureaucrats.
Citing scholarly papers, many of which date to the 1980s and 90’s during the heyday of bioethics scholarship on surrogate decision making and advance directive literature, Berger places his faith in the ethics committee, chaplains, and social workers over family
members who have become distanced from the patient. Clearly, there is a role for clinical ethicists to step into the fray when the patient is truly isolated and incapacitated, that is when he/she has no relatives or friends to represent them. But the same cannot be said when there are available surrogates. Does Berger really think we—the professional class—is better positioned for this role than family members, even when they have lost contact from the patient?
Berger offers a vignette of a nephew who hasn’t seen his uncle for six years. In his formulation, he opts for salvation from a bioethical bureaucracy. We find this troubling. On the basis of a very thin narrative reed—on a hypothetical which virtually has no
content whatsoever—the nephew is excluded. How do we know that this is justified, that he should be excised from the decision-making process? The story, as told is incomplete, more a parable than a case report (Fins 1998). Maybe the nephew was close to
the patient as a child. Maybe the patient was a favorite uncle long ago. Or he might have been especially close to the nephew’s parent
Safety, Crisis, and Criminal Law
No full textConcepts of safety and prevention of danger pervade the criminal law canon.' Arizona is no exception. The state's criminal systems3 pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused's freedom might pose.4 The rules of criminal procedure and the criminal code designate some offenses and actors "dangerous" and urge judges to weigh not only the accused's risk of flight, but also his future dangerousness in making decisions to release or detain pretrial. On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona's sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.?
Those with the power to create, enforce, and interpret the law demonstrate a similar allegiance to goals of safety and protection. The criminal code designates state law enforcement officers "public safety officers" and charges them with protecting and serving the community.' State prosecutors share this commitment. The Maricopa County Prosecutor's Office is not unique when it proclaims online that it is "dedicated to keeping families safe." The Pima County Attorney's office's website echoes the sentiment, promising a
trifecta of "Pursuing Justice. Prosecuting Criminals. Protecting the Community." The rhetoric of waging a war on crime to promote safety permeates electoral politics in the state.
None of this is unusual or surprising. Criminal law has long claimed the joined realms of safety and protection as its own." The narrative of these concepts, however, is deceptively complex. Despite their historical centrality to criminal law, the precise meaning of these terms remains elusive. Who warrants protection and how that protection is realized is obscure-its precise calculation a mystery. Likewise, outside of designating some crimes or actors dangerous, the code and rules define safety or the prevention of dangerous by what they are, but by what they are not. The task of crafting a more precise definition of safety or protection is left to discretionary decision-makers, who in an effort to lend meaning to the written law layer it with acts of application and interpretation. As formal discretionary decision-makers such as police, prosecutors, and judges interpret and apply law, they construct the previously absent or obscure borders of law's underlying principles. These discretionary moments matter, not only because they animate the law, but because they occur with far greater frequency than other moments of law creation.' Legislation occurs infrequently and seeks to establish baseline policies that are, by their nature, sufficiently general to apply broadly In
contrast, discretionary moments of policing, prosecuting, or judging, happen in the lived trenches and represent moments of contact between the governed and the governing. For their part, those who live under the law-informal actors-may enjoy moments of discretionary decision-making when they vote as citizens or jurors, though these may be limited, literally and figuratively
Lawyers and Historians Argue about the Constitution
No full textThe quarrel between lawyers and historians about the proper use of history in constitutional law is an old one. It predates the
rise of conservative originalism in the 1970s and 1980s. For example, the term "law office history"-now regularly employed to criticize lawyers who engage in historical arguments that are opportunistic, anachronistic, and unsophisticated-was employed by the legal historian Alfred Kelly in 1965.
Kelly's target was not today's movement conservatives. He criticized the Supreme Court's practices throughout the nineteenth century. Kelly especially objected to the work of liberal Justices in the 1940s, 1950s, and 1960s, who, he argued, had misused the history of the Founding to overturn older, politically conservative precedents.3 The Justices, Kelly complained, had anachronistically invoked history "as a precedent-breaking instrument, by which the Court could purport to return to the aboriginal meaning of the Constitution. It was thus able to declare that in breaking with precedent it was really maintaining constitutional continuity." What historians object to today lawyers sanctimoniously using the authority of the Founding to enact their contemporary policy preferences-was not a modern innovation, Kelly explained. It had been the Supreme Court's standard operating procedure.
The quarrel, however, is not simply one between lawyers on the one side, and historians on the other. Lawyers (including legal
academics) are often much more sharply critical of each other's historical arguments than are professional historians. Many law
professors have been trained as historians and some hold doctorates in history. Perhaps more important, lawyers may be
especially sharply critical of how other lawyers use history because they are trying to win arguments within law and legal theory. (The often heated debates over the meaning of the Second Amendment are a prime example.) 6 The adversary culture of legal argument encourages portraying opposing arguments as incomplete, mistaken, anachronistic, or wrong-headed. So lawyers find themselves on all sides of debates about how lawyers should (and should not) use history in constitutional
interpretation
Your Liberty or Your Gun? A Survey of Psychiatrist Understanding of Mental Health Prohibitors.
No full textThis first-of-its-kind national survey of 485 psychiatrists in nine states and the District of Columbia (DC) finds substantial evidence of clinicians being uninformed, misinformed, and misinforming patients of their gun rights regarding involuntary commitments and voluntary inpatient admissions. A significant percentage of psychiatrists (36.9%) did not understand that an involuntary civil commitment triggered the loss of gun rights, and the majority of psychiatrists in states with prohibitors on voluntary admissions (57%) and emergency holds (56%) were unaware that patients would lose gun rights upon voluntary admission or temporary commitment. Moreover, the survey found evidence that psychiatrists may use gun rights to negotiate “voluntary” commitments with patients: 15.9% of respondents reported telling patients they could preserve their gun rights by permitting themselves to be voluntarily admitted for treatment, in lieu of being involuntarily committed. The results raise questions of whether psychiatrists obtained full informed consent for voluntary patient admissions, and suggest that some medical providers in states with voluntary admission prohibitor laws may unwittingly deprive their patients of a constitutional right. The study calls into question the fairness of state prohibitor laws as policy, and — at minimum — indicates an urgent need for psychiatrist training on their state gun laws
Time-In-Cell 2019: A Snapshot of Restrictive Housing based on a Nationwide Survey of U.S. Prison Systems
No full textThis report provides a picture based on 2019 data from thirty-nine jurisdictions about the use of restrictive housing. For this analysis, we defined restrictive housing as holding individuals in a cell for an average of twenty-two hours or more a day for fifteen days or more. Through a nation-wide survey, we have gathered data enabling an understanding of the number of individuals held in solitary confinement, their demographic makeup, the duration of time that they spent in solitary confinement, and aspects of the rules governing that confinement. The collection of this information is a joint undertaking of the Liman Center at Yale Law School and the Correctional Leaders Association (CLA), formerly the Association of State Correctional Administrators (ASCA). Since 2012, the Liman Center and CLA have worked together on a variety of projects, several of which relate to restrictive housing
Toward Separation of Powers Realism
No full textMany wonder if the separation of powers is going to be reinvigorated by the new appointees to the federal judiciary. But that doctrine in practice means that occasionally alarming, but exceedingly rare, doctrinal innovations— finding venerable parts of the administrative state or portions of high-profile congressional statutes to be unconstitutional, for example—make no real-world difference because of the modest remedies paired with those innovations. This Article shows how weak the separation of powers doctrines have become; explains how, in the rare case that the doctrines require a remedy, the remedy is almost never what the plaintiff seeks or a constraint on the administrative state; and analyzes why judges of every ideological stripe have turned away from the doctrine. It adds a comprehensive study of the past two decades of practice by the Supreme Court and D.C. Circuit to the existing literature and argues that we would be better off abandoning efforts to reinvigorate the functional versions of the doctrines