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CRIV Sheet Summaries: A Review of AALL Annual Meeting Educational Program - Legal Ethics in the Use of Artificial Intelligence
Get PDFTaxonomy of Powers and Roles of Upper Chambers in Bicameral Legislatures
Get PDFBicameral legislatures exist around the world, with power divisions to create checks and balances on the constitutional order as a whole. In the context of constitutional design, this presents a variety of options of roles and rights given to each chamber at each step in both the legislative process and beyond. Taken as a whole, this taxonomy demonstrates there are nearly an infinite number of possibilities for separating powers between upper and lower chambers in bicameral legislatures. Often, these decisions are guided by the history of the country. For each federal legislature that places powers or votes in one chamber, the alternative can nearly always be found to exist in another country. Thus, this taxonomy outlines the different responsibilities presently designated to upper chambers around the world in both the legislative and extra-legislative realms but not limit the constitutional design possibilities to the current power divisions in existence
Healthcare Licensing and Liability
Get PDFThe United States’ affordable care crisis and chronic physician shortage have
required advanced practice registered nurses (APRNs) and physician assistants
(PAs) to assume increasingly important roles in the healthcare system. The increased
use of these nonphysician providers has improved access to healthcare and lowered
the price of care. However, restrictive occupational licensing laws—specifically,
scope-of-practice laws—have limited their ability to care for patients. While these
laws, by themselves, have important implications for the healthcare system, they also
interact with other legal regimes to impact the provision of care. Restrictive scopeof-
practice laws can increase the malpractice liability risk of physicians and
decrease this risk for APRNs and PAs via several traditional tort doctrines, such as
respondeat superior. In this Article, I provide the first empirical analysis of the
interplay between malpractice liability and scope-of-practice laws in the provision
of healthcare.
I concentrate on obstetric care and analyze a dataset of nearly 70 million births
over an eighteen-year period. The results demonstrate that relaxing APRN and PA
scope-of-practice laws significantly reduces the caesarean section rate—which is
currently over three times the rate recommended by the World Health
Organization—when malpractice liability risk is low. When malpractice liability risk
is high, however, relaxing these laws results in no change in the caesarean section
rate. I find similar results for other outcomes, such as medical inductions of labor.
The results thus elucidate an important interaction between scope-of-practice laws
and malpractice liability.
Based on this evidence, which shows that relaxing scope-of-practice laws can
significantly reduce the number of women who unnecessarily undergo major
surgery, I argue that states should eliminate restrictive scope-of-practice laws for
APRNs and PAs. Doing so will remove unnecessary limits on capable healthcare
professionals, better allow malpractice liability to deter the delivery of unsafe care,
and improve patient health outcomes
Blue Lives & the Permanence of Racism
Get PDFIn true dystopian form, the killing of unarmed Black people by the police has sparked a national narrative about the suffering of police officers. “Blue Lives Matter” has become the rallying call for those offended by the suggestion that we should hold police officers accountable for killing unarmed Black people. According to a December 2016 poll, 61% of Americans believed that there was a “war on police,” and 68% of Whites had a favorable view of the police as compared to 40% of Blacks. Lawmakers around the country have been proposing Blue Lives Matter laws that make it a hate crime to kill or assault police officers. This strange twist of events is perverse given the social context. Why should the police be viewed as victims in need of additional protection at precisely the same moment that many have questioned their victimization of Black communities? This Essay considers this question and argues that “Blue Lives Matter” is evidence of the permanence of racism as a juridical and discursive matter in this country
The Legal Fiction of the Right to Defense in the Colombian Criminal Justice System
Get PDFIn the first section of the article, I will discuss Omar\u27s case to show why he did not have a fair trial, and particularly how his rights to access to justice and to defense were infringed, both by the public defense he was provided and by the judges that decided his case.
In the second section, I will show that Omar\u27s case is a tellingillustration of the features of the Colombian criminal justice system, which systematically and disproportionately sentences and imprisons marginalized and poor people-in great measure because they lack the financial resources to pay for better and more motivated legal counsel.
Thus, Colombian criminal justice does not treat fairly those who have to resort to the public defense system-the majority of those being processed. Given their limited resources, work overload and lack of incentives, public defenders in practice struggle to effectively provide the minimal standards of an adequate, technical defense. Consequently, this puts the accused in a disadvantaged position vis-A-vis the prosecution, which is more powerful and has more means and incentives to perform its task.
In the third section, I will discuss why the government\u27s unfair treatment of the most disadvantaged members of Colombian society is made possible by a system that, in practice, is not impartial, and how this trend has continued, if not worsened, under the new accusatorial model. Within this model, the prosecution and the defense legally stand on equal ground before a judge. The former has to prove beyond a reasonable doubt the accused\u27s guilt, while the latter\u27s function is to protect the rights of the defendant, particularly the presumption of innocence. This arrangement guarantees the proper function of the criminal justice system and the limits of State coercion. But in practice, the structural and financial differences between the Attorney General\u27s office and the public defense system results in a criminal justice system that is not impartial. Instead, the system promotes and provides perverse incentives and instruments in order to efficiently evacuate cases and obtain convictions, giving a structural advantage to the prosecution that is reinforced by the majority of defendants\u27 lack of resources.
In the fourth section, I will show that such bias is endorsed by the judiciary, who ought to oversee the performance of the parties during a trial to guarantee fairness and the rights of the accused. Even though courts should be impartial in applying the law, they should also favor the protection of defendants\u27 constitutional rights, for they are the most vulnerable party when the State exercises its coercive powers. In a democracy and under the rule of law, these coercive powers must be constrained and kept in check. But in practice, the \u27neutrality\u27 of judges tends to transform into a kind of routine callousness, indifferent to the actual situation of those being prosecuted and the effective protection of their rights. Altogether, the supposed \u27impartiality\u27 of the system actually works against the interests of the accused, which makes their rights to defense and to access to justice a legal fiction, rather than a working practice.
In the fifth section I will discuss how and why the performance of the Colombian criminal justice and its accusatorial model is not unique or merely anecdotic, but an illustration of a worrisome and increasing trend in many Latin American and global north countries, such as the United States. This trend is linked to a political economy of punishment, where the political, economic, and social transformations in these countries during the last three decades have consolidated a type of liberal democracy that is increasingly unequal and excluding under the rules of market capitalism. Such democracies have a propensity to protect the civil and political rights of the middle and upper classes as well as the market economy that sustains them. This propensity is to the detriment of the social and economic rights of the poorer classes, gradually excluding them from the economy and polity, and progressively dealing with them through repressive policies, among which criminal policies have become salient
Public Defenders\u27 Offices In Brazil: Access To Justice, Courts, And Public Defenders
Get PDFThis essay discusses the impact of public defenders\u27 offices in promoting equality through the enforcement of the right to access to justice in Brazil. To achieve this goal, this note is divided into two parts.
Part I presents the Brazilian public defenders\u27 offices, their history, institutional design, rights, and prerogatives. Part II discusses the role played by public defenders in the enforcement of the right to access to justice in Brazil, as well as the relations established between public defenders and courts. The Conclusion attempts to assess the sustainability of the Brazilian model, in order to determine if there is any reason to believe that public defenders\u27 offices will be able to guarantee the right to access to justice to all Brazilian citizens in need of free legal services
The Mandarins of the Law: Pro Bono Legal Work from a Comparative Perspective
Get PDFIn Part I, I present the elements that form the standard global concept of pro bono work. Pro bono work is a global phenomenon defined by, and based on, a transnational discourse. In the first section of Part I, I argue that this transnational discourse conceptualizes pro bono work as a set of institutionalized free legal services that lawyers voluntarily provide to people with few financial resources or to protect the public interest. In the three following sections, I specify and analyze the concepts of subject, time, and space that this understanding of pro bono work creates, to present the categories that structure the discourse on pro bono work and contribute to the creation of part of the modern legal and political imagination. In the final section of Part I, I present and analyze the conceptual oppositions that structure the discourse on pro bono work and contribute to the creation of the concepts of subject, time, and space that support its conceptual apparatus.
In Part II, in the first section, I argue that the pro bono discourse and practices in Argentina, Chile, and Colombia are the result of a legal transplant between the legal mandarins of North and South America. The Argentinian, Chilean, and Colombian legal elites import this set of practices and theories; the US legal elites export them. In the second section of Part II, I explore the reasons for the exchange of pro bono knowledge. In the third section, I present and analyze the role that clients and the state have in pro bono, as well as the local interpretations and variations of the transplantation that are emerging.
Finally, in the last section, I explain why this knowledge still has not fused into stable institutions and practices in the importing legal communities. This legal transplantation has not taken root in the private spheres of the importing liberal states, and has had a minor impact on the realization of the right of access to justice
How to Fix Legal Scholarmush
Get PDFLegal scholars often fail to distinguish descriptive claims about what the law is from normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix it up, leading them to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. As a result, scholars sometimes talk past each other, generating not scholarship but “scholarmush.”
In recent years, legal scholarship has been criticized as too theoretical. When it comes to normative scholarship, however, the criticism is off the mark. We need more careful attention to theory, otherwise we’re left with what we have too much of now: claims with no solid normative grounding that amount to little more than opinions. We have no shortage of opinions, and simply producing more opinions will not make scholarship more practical.
Of course, centuries-old disputes in jurisprudence have struggled to untangle the precise relationship between law and morality, but my message is simple: scholars must be more clear, transparent, and rigorous about which of their claims are descriptive and which are normative (and what sort of normativity is at issue). By being more precise, we can hope to stop talking past each other and develop more objective criteria for evaluating both scholarship and public policy more generally
Examining the Anomalies, Explaining the Value: Should the USA FREEDOM Act’s Metadata Program be Extended?
Get PDFEdward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially seemed to be working well, although the fact that from 40 court orders in both 2016 and 2017, the NSA collected hundreds of millions of CDRs created public concern. Then in June 2018 the NSA announced it had purged three years’ worth of CDRs due to “technical irregularities”; later the agency made clear that it would not seek the program’s renewal.
This Article demystifies these situations, analyzing how forty orders might lead to the collection of several million CDRs and providing the first explanation that fits the facts of what might have caused the “technical irregularities” leading to the purge of records. This Article also exposes a rather remarkable lacuna in Congressional oversight: even at the time of the passage of the USA FREEDOM Act a changing terrorist threat environment and changing communications technologies had effectively eliminated value of the CDR collection. We conclude with recommendations on conducting intelligence oversight
Authority and the Globalisation of Inclusion and Exclusion: Author Meets Readers
Get PDFAuthority is written against the background of intense resistance to globalization processes by a range of political movements and grassroots organizations. These processes are complex and have a variety of dimensions. One of these is the emergence of global legal orders, which I define, in a rough and ready manner, as relatively autonomous legal orders that claim or aspire to claim global validity for themselves. They too-most obviously the World Trade Organization (WTO)-are the butt of resistance. Whatever its forms and aspirations, resistance to globalization is fueled by their peculiar dynamic. Indeed, emergent global legal orders spawn massive exclusion when including individuals and groups in a more encompassing unity. Pointedly, resistance by anti-and alter-globalization movements shows that individuals and groups are excluded because they are included in globalizing legal orders. This dynamic is puzzling, embarrassing, and disturbing.
Puzzling, because it suggests that-contrary to what has been taken for granted in state-centered theories of law-territorial borders are not the primordial mode of spatial inclusion and exclusion. One can plausibly argue that borders continue to organize the inside/outside distinction for transnational legal orders such as the EU. After all, its external borders are the borders of certain of its Member States. But by definition, the domestic/foreign distinction no longer makes sense for a legal order that claims global validity for itself. This is why the notion of global law is both puzzling and interesting in a way that eludes transnational law: resistance by anti- and alter-globalization movements forces us to reconsider what we mean by legal inclusion and exclusion. More generally, it demands that we look again at whether and how inclusion and exclusion might be constitutive features of legal ordering in general, and not only of, say, state or transnational law.
Embarrassing, because legal theory has surprisingly little to say about boundaries. The borders of states have, of course, been the object of considerable attention in studies that document the emergence of the territorial state and the so-called Westphalian paradigm. And there is no dearth of studies that evince how states and their borders are challenged by transnational and globalizing legal orders. But there are few-if any-general theories of legal and political boundaries, of which the state\u27s territorial borders are a historically contingent species. The one exception I am aware of to this theoretical paucity is systems theory. By adverting to the fact that no legal system is possible absent a boundary that joins it to and separates it from its environment, systems theory offers an incisive and illuminating contribution to a theory of legal ordering as a process of setting boundaries. Yet it struggles to adequately interpret the nature of spatial boundaries, in light of its theoretical presuppositions. In particular, systems theory assumes that emergent global legal orders are no longer spatially bound. Legal theories of an analytical bent tend to pass off the question about legal boundaries as part and parcel of a sociological inquiry. In short, it is safe to say that contemporary legal theory has expended most of its energies in fighting out the so-called identity question concerning the specific nature of legal orders and their relation to other normative domains-morality in particular-neglecting the question about the relation between boundaries and legal order, a question that William Twining dubs the individuation question.
Disturbing, because if individuals and groups are excluded for their inclusion in global legal orders, the pressing question arises whether a legal order is imaginable that could escape the logic of inclusion and exclusion. Notice that I am not linking this question to the globalization of capitalism, which has driven so much of globalization processes as they unfold before our eyes. My question is absolutely general: Is any legal order possible that could include all, without any exclusion? Here again, focusing on emergent global legal orders brings the stakes of this question into particularly sharp relief, in light of their alleged all-inclusiveness.
At issue are the conditions governing the authoritativeness of the acts through which the boundaries of legal orders are posited. If no legal order can emerge absent a spatial closure that could have been drawn otherwise, is an authoritative politics of boundaries at all possible in a global setting? Can we avoid lapsing into relativism if, as I aver, we must forgo the possibility of realizing an all-inclusive-universal-legal order