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What Does It Mean to Be an Ethical Lawyer? The Importance of Context
Get PDFAlthough the entire legal profession shares a single ethical code, lawyers’ understanding of what it means to be “ethical” shows considerable variation. This article discusses the factors that shape lawyers’ ethical conduct in practice. We review the role of legal education, bar associations, the workplace, and hard and soft regulators in the construction of lawyers’ ethical values. We then explore the important role that practice contexts play in shaping lawyers’ understanding of appropriate ethical conduct. Some of the key explanatory factors for differences among lawyers include type of client, office size, specialty and specialization, regulators, and the extent to which lawyers engage in litigation. We then anticipate new ethical challenges for lawyers created by market pressures and other factors and identify questions for future research
Abortion Access for Incarcerated People Post-\u3cem\u3eDobbs\u3c/em\u3e
Get PDFDobbs v. Jackson Women’s Health Organization has fundamentally altered the legal landscape regarding abortion access. Though abortion rights for all people across the United States have now been eliminated or are in jeopardy, incarcerated people are a particularly vulnerable group, given the way carceral institutions restrict autonomy and the drastic health implications of an unwanted pregnancy while confined. Before Dobbs, detained people retained the constitutional right to an elective abortion while incarcerated. To remedy violations of this right, women brought claims under the Fourteenth Amendment and the Eighth Amendment. In a post-Roe world, however, incarcerated folks denied abortion access are no longer able to seek legal recourse under the Fourteenth Amendment. To challenge court policies that restrict abortion access, incarcerated plaintiffs must rely solely on an Eighth Amendment claim. This note explores the ways that Dobbs both strengthens and exacerbates the need for an Eighth Amendment claim. I argue that depriving someone of an elective abortion procedure violates the Eighth Amendment’s protection against cruel and unusual punishment, irrespective of whether abortion is constitutionally protected as an implied fundamental right. I also acknowledge the inherent limitations of pursuing an Eighth Amendment claim in this realm and discuss possible ways forward. Ultimately, by illustrating how offensive to human dignity it is to deny people elective abortions, a robust Eighth Amendment claim provides an avenue to rebuild constitutional protections, both for incarcerated women and women everywhere
Biophilic design and biophilic cities: an explainer
Get PDFThe COVID-19 pandemic brought into focus that outdoor activities in natural settings have a positive impact on mental health, and individuals participating in outdoor activity report higher rates of emotional well-being than individuals who do not participate in such activity. Biophilic design is an architectural practice that aims to connect people to nature through design concepts with one of the benefits being psychological. Other benefits of biophilic design include improvements to environmental quality, physical health, support of animal species and habitats, and more resilient and energy-efficient cities
Revising the Indian Plenary Power Doctrine
Get PDFThe federal Indian law doctrine of Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine\u27s legal basis remains a constitutional conundrum. This Article considers the Court\u27s recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judicial readiness to reevaluate the doctrine. The Article takes ahold of Justice Gorsuch\u27s critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line of caselaw
A Framework for Managing Disputes Over Intellectual Property Rights in Traditional Knowledge
Get PDFMajor controversies in moral and political theory concern the rights, if any, Indigenous peoples should have over their traditional knowledge. Many scholars, including me, have tackled these controversies. This Article addresses a highly important practical issue: Can we come up with a solid framework for resolving disputes over actual or proposed intellectual property rights in traditional knowledge?
Yes, we can. The framework suggested here starts with a preliminary distinction between control rights and income rights. It then moves to four categories that help to understand disputes: nature of the traditional knowledge under dispute; dynamics between named parties to disputes; unnamed Indigenous claimants; and the various normative systems (for example, custom, U.N. documents, treaties, statutes, administrative regulations) within which disputes are decided. Throughout, examples that inform the framework come principally from Indigenous peoples in the Pacific rim. Lastly the Article tests the framework against some disputes over traditional knowledge in Samoa and New Zealand.
This framework is comprehensive and sensitive to context. It is flexible regarding which normative systems are best suited to settling disputes. A test run shows that the framework helps to resolve practical legal issues
\u3cem\u3eCrawford\u3c/em\u3e and Criminal Justice
Get PDFThis essay reflects on whether Crawford v. Washington, now in its third decade of life, matters to criminal justice. For all the talk of Crawford as “revolutionary,” that is, has it made any real difference to the world of crime and punishment? I’ve confronted the question before. In a 2021 essay, I argued that Crawford probably has modest real-world effects. Crawford articulated a right that criminal defendants can exercise only at trial. In an adjudicatory system bereft of trials, trial rights don’t count for much. They impact plea outcomes only when they confer bargaining power sufficient to offset prosecutors’ prodigious leverage. The post-Crawford confrontation right might do that occasionally, I contended, but it’s unlikely that it does so generally. In this essay, I revise and extend those remarks. I extend them by elaborating on my view of Crawford’s practical consequences. I revise them by recognizing that Supreme Court decisions can matter in other ways. Crawford matters to criminal justice because the Court radically departed from the jurisprudential framework that’s dominated its criminal adjudication work for generations, which centers the imperative of swiftly processing cases through America’s courts. To be sure, system maintenance isn’t the official logic of constitutional criminal procedure. For the public and parts of the legal profession, the Court touts an adjudicative process that’s careful and deliberate. But for criminal justice professionals, it endorses doctrinal workarounds of constitutional rights that it worries are too inconvenient. Even if the workarounds aren’t exactly the procedures touted in law-day celebrations, they are, in the Court’s eyes, close enough. But not in Crawford. In Crawford, the Court embraced inconvenient proceduralism in criminal adjudication. Crawford’s legacy in the criminal procedure realm (as distinct from its contributions to constitutional theory or evidence) lies in its proof of concept for a jurisprudence that treats the rights of the accused as meaningful constraints rather than as nuisances to elude. Crawford may not affect the resolution of many criminal cases, but it provides conceptual grounding for changes that would. This essay proceeds in three parts. Part I further explains why Crawford probably does not directly or indirectly impact outcomes in all that many criminal cases. Part II contrasts Crawford with the Court’s usual approach to criminal adjudication cases, which I label the “jurisprudence of close enough.” Finally, Part III considers the value and appeal of Crawford’s stand for inconvenience in criminal adjudication
Enhancing 21 U.S.C. §§ 355, 356, and 360 to Encompass Artificial Intelligence-Based Drug Design and Manufacturing Methods
No full textDespite newfound attention to how artificial intelligence (AI) may accelerate pharmaceutical development, federal regulators may find that current statutes are ambiguous or silent about their applicability to AI-based drug design and manufacturing methods. This poses a serious problem in the era of Loper Bright and the Major Questions Doctrine. As federal agencies struggle to adjust to courts’ growing demand for Congress to craft clear, explicit, and express delegations of authority, this note develops a statutory framework in which the Food and Drug Administration (FDA) would have more flexibility to regulate the use of AI in advanced drug manufacturing. Guided by lessons from AI-adjacent statutes and international regulatory schemes, this note proposes amendments to 21 U.S.C. §§ 355, 356, and 360 that would undergird said framework
Justifying Redistributive Regulations
Get PDFConventional cost-benefit analysis asks whether a regulation’s total benefits exceed its total costs but not whether those benefits and costs are distributed fairly across society. The traditional justification for this indifference to equity is that distributional concerns are most efficiently addressed through the tax-and-transfer system. Agencies issuing regulations, the story goes, should focus on growing the pie (i.e., increasing aggregate welfare). If the regulation that yields the largest pie also yields inequitably apportioned slices, Congress can correct the problem with taxes and transfers.
But Congress often asks agencies to fill in the details of its transfer programs with regulations, such as those setting eligibility criteria and benefit parameters for healthcare, housing, and nutritional assistance. The standard rationale for ignoring distributional consequences does not apply to these “transfer rules.” Yet the standard White House guidance on cost-benefit analysis does.
This Article uses three rulemakings to illustrate how conventional cost-benefit analysis tends to obscure rather than illuminate agencies’ (often distributional) reasons for issuing transfer rules—generating unnecessary legal risk for the agencies and unnecessary confusion for the public. The Article then explains why recent revisions to White House guidance on cost-benefit analysis—including the introduction of an analytic technique called income-based distributional weighting—will not fully resolve this problem. Finally, the Article recommends a new analytic framework for transfer rules that recognizes the particular relevance of distributional concerns to their promulgation and the distinct challenges of assessing their indirect effects on aggregate welfare