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Love, Liberalism, Substituted Judgment
Get PDFUnder the doctrine of substituted judgment, decision-makers for adults without legal capacity are to make the decision the person in their care would have made. In cases involving irreversible cognitive decline—where substituted judgment is most frequently applied—scholars have struggled to explain it, resorting to mysterious metaphysical claims. These philosophical acrobatics seem necessary because the person for whom the decision is made cannot appreciate it, and, philosophically, they may not be the same person they had been.
This Article offers a novel account of substituted judgment that circumvents these challenges. I argue first that the doctrine is straightforwardly justified in cases of temporary incapacity, such as that of a psychotic episode, and then explain why the law might justifiably treat permanent incapacity as though it were temporary. In cases of temporary incapacity, substituted judgment is grounded in love. “Love” describes (at least) intimate knowledge of and concern for the personal identity of another. To make the decision someone would have made while they are temporarily unable to is an act of love.
And there are at least three reasons the law might justifiably treat permanent incapacity as though it were temporary. First, there is substantial medical uncertainty about the prognosis of brain disorders. Second, it is characteristic of love that it is partially constitutive of the identities of those who love—a doctrine justified by love might recognize this. Finally, a liberal private law might acknowledge that, under many worldviews, what looks like permanent incapacity is in fact temporary
Protecting Undisclosed Enterprise Data as Trade Secrets in the United States and China
No full textThis dissertation examines the legal protection of undisclosed enterprise data, focusing on trade secrets law. The study thoroughly investigates international harmonization efforts and, building on this foundation, focuses on a comparative analysis of the different approaches taken by the United States and China toward trade secret legal protection. As businesses increasingly rely on proprietary information, such as algorithms and big data generated by modern technologies, the study investigates how legal frameworks have evolved and shall continue evolving to balance private interests in valuable enterprise data with public policy concerns to promote innovation and information flow.
The objectives of this study are threefold: tracing the development of international trade secret law, conducting a comparative analysis of U.S. and Chinese trade secret legal protection systems, and addressing specific challenges related to protecting modern enterprise data. A key focus is how both countries are adapting their legal frameworks to protect not just traditional types of enterprise data, but also newer forms generated by advanced technologies. The study’s conclusions call for refined legal interpretations and proactive legislative measures to ensure the legal protection of trade secrets remains effective in the rapidly evolving global digital economy
The Duty of Constant Care and Data Protection in War
No full textThis book provides a pathbreaking attempt both to define the important legal questions related to the growing use of “big data” in extraterritorial military operations, and to begin to provide some answers. Big data, meaning the troves of data generated by new information technologies and the advanced analytics used to process that data, is radically reshaping the modern battlefield. Like many new military technologies and capabilities, the myriad uses of big data present broad questions about how to translate existing rules and principles embedded in multiple bodies of law to these new contexts, both within armed conflict, as part of adversarial activities below the armed conflict threshold, and in a range of related operations that increasingly use, deploy, and target such data. These questions extend beyond the role of big data within weapons systems and other military capabilities to questions about the nature of civilian harm, scope of individual rights, atrocity investigation, and humanitarian relief.The chapters in this book comprise the first initiative to grapple with a wide swath of these questions including whether, and how, jus ad bellum, international humanitarian law, international human rights law, and international criminal law might apply to operations involving big data. At the same time, because big data is so transformative, the uses of such data provoke deeper questions about the law itself, exposing gaps and interpretive ambiguities in existing legal frameworks that generate critiques of those frameworks as inadequate. Accordingly, while big data holds enormous promise, it also has the potential to disrupt modern warfare and the rule of law itself. This book confronts these issues directly, offers a range of approaches, and suggests an initial roadmap for scholars and practitioners alike.
Includes the chapter, The Duty of Constant Care and Data Protection in War by Maurer Professor Asaf Lubin.https://www.repository.law.indiana.edu/facbooks/1337/thumbnail.jp
ACS selects Allyson McBride as Next Generation Leader
Get PDFThe American Constitution Society has named Indiana University Maurer School of Law second-year student Allyson McBride a Next Generation Leader—one of 34 across the United States—the organization announced April 11.
She is the third Indiana Law student in as many years to earn the prestigious recognition
Disability Discrimination by Clinical Algorithm
Get PDFIn response to America’s escalating drug poisoning crisis, the federal government has funded, incentivized, and mandated that states adopt and implement prescription drug monitoring programs (“PDMPs”) to electronically surveil controlled substances and other “drugs of concern.” State PDMPs utilize proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder. PDMPs have never been validated by a federal agency or peer review, yet states have mandated their use throughout the health care delivery system.
Research demonstrates that clinical overreliance on the risk scores generated by PDMP algorithms motivates clinicians to refuse to treat—or to inappropriately treat—marginalized and stigmatized patient populations, including individuals with actual or perceived substance use disorder, chronic pain conditions, or other disabilities. The misuse of information generated by PDMP algorithms by healthcare providers is anticipated to impact over one billion patient encounters each year. This Article provides a framework for challenging such PDMP algorithmic discrimination as disability discrimination. It contends that Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, and Section 1557 of the Affordable Care Act can be engaged to protect vulnerable patients from PDMP-related algorithmic discrimination. It then provides recommendations to develop and strengthen the 2024 Section 1557 final rule concerned with clinical-decision algorithmic discrimination, harmonize new and existing antidiscrimination protections, and improve implementation and enforcement efforts in this context
2024/25 Maurer School of Law, Indiana University, staff group photograph, 2022, 2023
No full texthttps://www.repository.law.indiana.edu/staff/1006/thumbnail.jp
Tolled Education: An Economic Markets and Goods Analysis of Inefficiencies in American Public Education
Get PDFThe goal of this Comment is to evaluate the failures of the current system of education within the United States via policy and economic market and goods analysis lenses; in doing so, it will establish that public education in the United States is a toll good, and the only way to properly fix the inefficiencies that result is to reduce excludability and convert the education into a public good. First, Part I will overview how we got here by describing relevant laws and history, the current state of federal case law, and the dire situation for many students throughout the country. Part II will describe policy rationales and explore types of markets and goods. Finally, Part III will evaluate the results of those classifications. It will build on an interdisciplinary foundation by combining economics, education policy, and law; in doing so, it will classify and identify education in a novel perspective with unique consequences. Specifically, it will address how our current education system does not properly satisfy our market goals—producing workers and informed citizens—thus resulting in arbitrage-like inefficiencies. It will also propose a solution to that problem and how the nature of the good or market could be altered to minimize those inefficiencies. However, it is important to observe that this change would not be constitutionally required but rather an ideal to be modified for local needs. A federal baseline is likely needed to achieve those goals