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“Love is Distance”: Is That So? Lockdown Strategies, Medically Vulnerable People, and Relational Ethics
Get PDFFalse Positivism: The Failure of the Newest Originalism
Get PDFOriginalism is a juggernaut. It pervades our constitutional discourse and it has become a fort and font of constitutional legitimacy. A number of our most prominent jurists and legal thinkers are self-described originalists and, in myriad constitutional cases, originalist argumentation demands our serious attention. Notwithstanding, originalists have struggled to forge any meaningful consensus on the most foundational issues. Among the serious problems, originalist theories have each struggled to navigate between preserving core features and fixed stars of our law and remaining a distinctive theory with fidelity to original meaning. The newest effort in this struggle is the so called positive turn in originalism. Positivist originalism seeks to refocus constitutional interpretation from normative questions — about morality, linguistics, interpretation, and authority — to what the law actually is, as embodied by our legal practice. This focus, we are told, comes from H.L.A. Hart\u27s legal positivism — a theory of law based on social facts and the actual behavior of officials in the legal system. The resulting positivist originalism — which contends that our law includes the original precepts and methods of the founding era — promises to provide historical and empirical conditions for the validation of our law, without appeal to theoretical questions about the law.The project of positivist originalism fails. I proffer four criticisms of positivist originalism: First, positivist originalism\u27s commitments contravene key insights of legal positivism. Second, positivist originalism, and its real-world formulation called original-law originalism, do not actually describe our practice of law (or do so trivially). Third, the methodology of positivist originalism cannot sustain its conclusion, in light of the facts that our obligation to follow the law is at best qualified and because there are equally good competing theories describing our law. Fourth, beyond these internal flaws, positivist originalism fails to solve any of the problems that have continually plagued the originalist enterprise. Thus, the project of positivist originalism cannot fulfill its aims and is unlikely to do so without appealing to the very theoretical questions it was devised to avoid
Preventing Perpetrators of Sexual Misconduct from Circulation in the International Development and Humanitarian Assistance Sectors
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Non-Consensual Disclosures
Get PDFIn the course of biomedical research on humans — for example, flu, imaging, and genomic studies — researchers often uncover information about participants that is important to their health and wellbeing. In many cases, the information is not anticipated in advance, and participants did not consent to receiving it. This Article examines the law and policy governing human subjects research, focusing on the set of regulations known as the Common Rule. I argue that human subjects researchers will often have strong ethical reason s to disclose results even when participants did not consent to the disclosure in advance. I also show how the current regulatory scheme stands in the way of ethical disclosures, putting researchers in a difficult position where they might not be able to fulfill their ethical duties without transgressing legal ones. Although we need to contend with autonomy and welfare risks associated with returning results, not to mention financial and administrative costs, these downsides are similarly present in analogous scenarios where non consensual warnings are legally permitted and sometimes even required. There does not appear to be any good reason to make a policy exception for biomedical researchers when it comes to issuing warnings in the form of information disclosure. To aid difficult determinations about which results warrant return, I suggest that policymakers should take advantage of the interest and willingness of the bioethics community to develop consensus norms and incorporate these norms into regulation such that the regulations would at least permit researchers to disclose results whenever consensus standards would recommend disclosure. In this way, the law would make space for ethically optimal conduct without necessarily compelling it. At the same time, bioethicists and researchers should train their attention on non-ideal consent settings — the focus of this Article — rather than continuing to assume or hope that participants will have a chance to consent to the disclosure of results in advance
Clark Memorandum: Fall 2021
Get PDFTruth, Civility, and Advocacy Cultivating a Deeper Faith in Jesus Christ Can Religion Be a Healing Force in Society? Navigating Life’s Uncertainties Read on Issuuhttps://digitalcommons.law.byu.edu/clarkmemorandum/1069/thumbnail.jp
Clark Memorandum: Fall 2021
No full textClark Memorandum: Fall 2021 Truth, Civility, and Advocacy Cultivating a Deeper Faith in Jesus Christ Can Religion Be a Healing Force in Society? Navigating Life’s Uncertaintieshttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1066/thumbnail.jp
The Role of Courts in the Evolution of Standard Form Contracts: An Insurance Case Study
Get PDFStandard form contracts are a pervasive feature of modern commercial life for ordinary consumers and big businesses alike. Yet remarkably little is currently known about how and when these contracts evolve in response to judicial decisions that interpret and apply them in individual disputes. Homeowners insurance policies offer a particularly fertile ground for studying this issue due to both the prominence of the insurance law doctrine that ambiguities are interpreted against the drafter and the historic standardization of insurance policies across different insurers. Utilizing a unique hand collected dataset, this Article empirically investigates the links between innovation in the dominant ISO HO3 homeowners policy and published caselaw interpreting that contract. The results demonstrate that judicial caselaw has indeed played a vital role in the evolution of homeowners insurance policies over the last fifty years, forcing insurers to spell out their obligations more precisely and clearly. Notably, judicially prompted changes to policy language have often expanded coverage, suggesting that judicial scrutiny can empower regulators and market intermediaries to secure drafting concessions in revisions to homeowners policies. Normatively, these results provide strong support for insurance law\u27s central doctrine that ambiguities are interpreted against the drafter. When considered in light of prior research demonstrating that some homeowners insurers have recently begun departing from the ISO HO3 policy in ways that systematically restrict cover age, this Article\u27s results also suggest that states should strongly consider requiring homeowners policies to provide coverage that is no less generous than the ISO HO3 policy. With respect to contract law more generally, the Article s findings suggest that contractual innovation, particularly when prompted by caselaw, operates quite differently in different market and regulatory settings