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Comment: Further Consideration on the Relationship Between the Americans with Disabilities Act, Supported Decision-Making, and Medical Aid in Dying
Get PDFAs Ms. Rosen’s Note explains in further detail, the use of supported decision-making creates an opportunity for persons with cognitive impairments to participate more fully in their end-of-life care. While this Comment focuses on the legal requirement for healthcare providers to serve people with cognitive impairments at the end of life, the tenets of patient autonomy, self-determination, and the dignity of risk must be integrated into end-of-life practice to provide guidance where legal requirements are absent or ambiguous. The use of the supported decision-making model in end-of-life care will only succeed when healthcare providers participate in an open-minded manner. It is only through this type of engagement that we empower individuals with cognitive disabilities to participate fully in their own end of life journey
Abortion, the Underground Railroad, and Evidentiary Privilege
Get PDFBuilding on my recent article in the Minnesota Law Review proposing reforms of evidentiary privilege law, this Article focuses on the unique context of communication about abortion. There is an urgent need to protect such communication in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to recriminalize abortion. Now abortion seekers, providers, and third parties who aid and abet abortion could face significant exposure to both criminal penalties and civil suits in many states. Those states are attempting to extend the reach of their bans by sanctioning out-of-state travel and third-party aid to the traveler if the purpose of the travel is to abort a pregnancy. Advocates for reproductive freedom recognize the need to establish an “underground railroad” akin to the surreptitious assistance of fugitive slaves fleeing the Antebellum South. A stricter evidentiary privilege for abortion-related communication is crucial to protect those who seek to defy the draconian new regime.
In this Article, I offer a model rule that legislatures and judges should adopt. I also propose a comprehensive set of related reforms including changes to the crime-fraud exception in privilege law, changes to attorneys’ ethical rules, and changes to regulations governing data privacy.
The benefits of this Article’s proposals could be significant. For those who need to terminate their pregnancies but live in states that have criminalized abortion—a population consisting largely of low-income people of color—the new privilege could be the difference between privacy or prison. The proposals in this Article would improve access to abortion, reduce exposure to reprisals in court after an abortion, and limit the surveillance that could otherwise plague people of childbearing age.
From a conceptual standpoint, this Article’s proposals would make privilege law more egalitarian by shifting the focus from the professional credentials of the audience to the subject matter of the conversation—a long-overdue reorientation. Evidentiary privilege should not be coextensive with economic privilege
Disciplining Doctors: A Call for Caution When Responding to Physicians\u27 Counter-Consensus Speech in the Time of COVID-19
Get PDFThe COVID-19 pandemic affected nearly every aspect of life in the United States, including most notably, work-life, home-life, and community-life. During the pandemic, the government took extraordinary steps to try and reduce the spread of the disease by closing businesses, mandating the wearing of masks, and requiring vaccines. Government officials repeatedly justified their actions by stating that they were following the science. However not all members of the scientific/medical community agreed with these actions. Some of these counter-consensus opinions were labeled mis/dis/mal/information.
As the COVID-19 pandemic dragged on, calls to punish doctors for COVID-19 misinformation increased. Some doctors who claimed that mask mandates were ineffective or that the vaccines did not prevent COVID-19 infections or who recommended the use of alternative methods to treat COVID-19 found themselves facing disciplinary investigations. For example, California enacted a law specifically authorizing the state medical licensing board to punish doctors for providing COVID-19 misinformation in the context of the doctor patient relationship. Efforts to punish doctors for their counter consensus opinions raise several fundamental questions: What restrictions can state medical licensing boards place on doctors\u27 counter-consensus speech? When doctors make statements in the public square about medical controversies are their First Amendment rights different than other citizens? What is the best way to counter incorrect medical information?
Most would likely agree that doctors who make false statements for profit or recklessly provide inaccurate medical advice to patients should be subject to punishment. However, scientific and medical understanding of the COVID-19 virus and how to combat it was in constant flux. Further, scientific consensus appears to have been driven by opinions coming from the Centers for Disease Control, the Food and Drug Administration, and the National Institutes of Health which suggests an intertwining of politics and medicine. The government agencies tasked with recommending how to combat the pandemic were also the primary sources of medical and scientific truth regarding the pandemic.
This article recommends caution and moderation when disciplining doctors for counter-consensus COVID-19 opinions. First, doctors should not be punished for public statements made outside of the context of the doctor-patient relationship. Punishing doctors for otherwise protected constitutional activity not only infringes on their right to free speech, but also potentially damages the public\u27s trust in the medical community and governmental public health agencies. The better path to successfully combatting inaccurate physician information is with accurate physician information. The truth has ever been more convincing than that which is not true. Second, in the context of the doctor-patient relationship, states, hospitals, and medical associations have an obligation to protect patients and hold doctors to the appropriate medical standards. Thus, doctors can and should be disciplined when they violate their professional obligations while giving advice to patients.
This article recommends, however, caution when disciplining doctors for the advice they give to patients regarding COVID-19. As mentioned, the scientific and medical communities\u27 understanding of COVID-19 has evolved. Opinions that were once thought to be misinformation are now more broadly accepted as true or possibly true. This article recommends an approach to disciplining doctors that analyzes four components related to medical advice or treatment: 1) harmfulness; 2) the presence of fraud, misrepresentation, or coercion; 3) whether there was full and complete informed consent; and 4) did the doctor display the degree of skill and learning employed by a reasonable doctor in a similar circumstance. By analyzing these four elements, doctors who offer earnest, well researched, counter consensus medical advice will avoid discipline, while negligent doctors, offering dangerous and scientifically unsupported opinions will be held accountable
Place-Based versus Practice-Based Norms for American Lawyers: It\u27s the End of the World as We Know It (and I Feel Fine)
Get PDFThis Article acknowledges the growing trend toward practice-based lawyer norms, points out how it allows interaction between the existing place-based norms and the new practice-based norms, and compares this movement with the existing regulatory conditions outside the US. If there is movement from the world as we know it (place-based norms) to a world as it may come to be (practice-based norms), is the change tragic, inevitable, risky, in line with the rest of the global legal profession, or all of the above and more? Specifically, how would such an evolution affect the core duty of lawyer-client confidentiality
In Hopes of Getting Our Act Together
No full textAnne Schwenkenbecher\u27s book, Getting Our Act Together: A Theory of Collective Moral Obligations, provides us with tools that help us address what are clearly some of the most pressing issues of our time: climate change, a global public health crisis, and the absence of democratic legitimacy. She manages to move deftly between real-world examples and carefully-constructed thought experiments to explain her view of how collectives can be, and be held, morally responsible. The forward-looking view of responsibility, rather than the 1nore common backward-looking view, allows us to use the view to encourage individuals and collectives to aim for the best outcomes
Is a Duty to Pay Tax Inherent in Affirmations of Human Rights?
Get PDFThe United Nations’ Universal Declaration of Human Rights 1948 (the Universal Declaration), as the preeminent statement of human rights, informs numerous cognate covenants and declarations of rights, and charters of rights included in national constitutions. Unlike the rights declarations of the Enlightenment, the Universal Declaration affirms broad welfare rights, in addition to civil and political rights. No right or set of rights is superior to another; they are indivisible, interdependent and interrelated.
Declarations of rights may also include duties. The Organization of American States’ American Declaration of the Rights and Duties of Man 1948 (“the American Declaration”), for example, includes statements about broad civic and social duties, and a specific list of duties that approximately reciprocate the rights affirmed. The American Declaration, which was concluded eight months before, and influenced the drafting of, the Universal Declaration, affirms a duty to pay tax. Article 29(1) of the Universal Declaration includes a general duties provision: “Everyone has duties to the community in which alone the free and full development of his personality is possible.” Do the vaguely stated duties recorded in the Universal Declaration incorporate a duty to pay tax in a way comparable to the explicit duty included in the American Declaration?
In answering that question, this Article seeks to link welfare rights and duties, in particular, a duty to pay tax. The Article considers the negotiations that led to the vague formulation of article 29(1) of the Universal Declaration in order to understand why, when we may claim numerous, specific human rights that the state has undertaken to uphold and must pay for, in the major Anglophone countries, we do not have an express duty founded in human rights doctrine to pay tax
Policing the College Campus: History, Race, and Law
Get PDFThe structure, impact, and historical roots of campus policing on the American college campus receives little academic attention. In fact, campus policing is often overlooked in legal analyses and research studies, including its relationship to race. Campus policing and race deserves a critical assessment from legal scholars because race is fixed to the ways the criminal-legal system presents itself on campus. The racialized implications of policing on campus are rooted in historical social and legal contexts that still exist today. However, the lack of research on campus policing is not surprising. American colleges and universities have successfully marketed themselves as academic enclaves situated away from the crime-riddled masses and as antithetical to the criminal-legal system. Despite this framing, American colleges and universities routinely resource their on-campus police departments and collaborate with law enforcement agencies to police and surveil students and the surrounding community. This article serves as an introduction to the historical, legal, and policy issues concerning campus policing and race
Behind the Screen: Examining the Human Consequences and Constitutional Ramifications of the Virtual Criminal Defendant
Get PDFDefendants are waiting behind a screen to learn their fate in their criminal proceedings. This Note sounds the alarm that having incarcerated defendants appear virtually for their criminal proceedings will lead the criminal justice system further down a path of mass incarceration and destruction. This Note demonstrates and argues that there are no benefits for having an incarcerated defendant appear virtually because there are no real benefits to the defendant themselves. Courts further try to argue that video appearances are efficient as they save time and money but as this Note shows those arguments are misleading and miss the point of who the court system should work for and protect. This Note offers three solutions to combat this problem 1) release all defendant pre-trial so that defendants can appear in-person 2) have incarcerated defendants bring an Equal Protection Clause claim against their state of prosecution for being treated differently than defendants who are not in custody pre-trial and 3) if video appearances do not stop then courts must get the informed consent of incarcerated defendants to appear virtually through a Rule 11 type colloquy
Supported Decision-Making and Merciful Health Care Access: Respecting Autonomy at End of Life for Individuals with Cognitive Disabilities
Get PDFSupported decision-making is a relatively new, powerful, and quickly developing alternative to restrictive guardianships and other draconian surrogate decision-making arrangements for individuals with cognitive disabilities. Its power lies specifically in the protection and affirmation of their autonomy, allowing these individuals to remain central in the planning of their lives and affairs. Despite supported decision-making’s theoretical promise, it is often unclear whether and how the model interacts with other legislation presiding over how one may make crucial life choices, such as those at end of life.
This Note attempts to bridge the gap by analyzing how supported decision-making may be a valuable tool in effectuating equal access to end-of-life health care. For several reasons, individuals with disabilities are living longer and are subsequently more likely to encounter complex end-of-life treatment decisions. Unfortunately, they also face significant barriers in accessing health services. Their autonomy is often subjugated in favor of paternalistic norms, potentially rendering them ineligible for certain pain-mitigating care and forcing them to suffer needlessly at end of life. It is possible that through the use of supported decision-making, patients may be able to access pain mitigating treatment that may otherwise be unavailable to them. At the same time that supported decision making is gaining legal traction and public favor, laws like the FDA’s Expanded Access Program, otherwise called compassionate use, and state medical aid in dying legislation are promoting individual autonomy and the ethical concept of mercy by providing alternative avenues to limit suffering at end of life.
Undoubtedly, those with cognitive disabilities wishing to access medical aid in dying or compassionate use are in unique circumstances, but no individual should be forced to suffer through a terminal diagnosis without access to the health care of their choice. Although more research is needed regarding how supported decision-making agreements are commonly used and how they interact with end-of-life legislation, a continued push for expansion and revision of both supported decision-making statutes and end-of-life legislation may legitimize its application to end-of-life pain management. This would halt foreclosure of individuals’ rights to self-determination