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Rationing Healthcare During a Pandemic: Shielding Healthcare Providers from Tort Liability in Uncharted Legal Territory
Get PDFAs the coronavirus pandemic intensified, many communities in the U.S. experienced shortages of ventilators, ICU beds, and other medical supplies and treatment. There was no single national response providing guidance on the allocation of scarce healthcare resources. There has been no consistent state response either. Instead, various governmental and nongovernmental state actors in several but not all states formulated “triage protocols,” known as Crisis Standards of Care, to prioritize patient access to care where population demand exceeded supply. One intended purpose of the protocols was to immunize or shield healthcare providers from tort liability based on injuries resulting from a medical decision rationing access to care. Research shows that various state protocols have been implemented to this end by either executive order issued by the governor; state legislation; or action by individual hospital ethics boards. This paper examines a legal question of first impression: Whether the right to institute suit for pandemic related healthcare injuries can be constitutionally eliminated using state triage protocol immunity provisions passed by executive order or state statute during the pandemic. The paper concludes that healthcare providers may still be subject to some legal liability depending upon each state’s unique constitutional grant of powers to the executive and legislative branches and the dictates of the Fourteenth Amendment
Fanon, Colonial Violence, And Racist Language In Federal American Indian Law
Get PDFThis Comment will argue that the racist language enshrined in foundational Supreme Court decisions involving Native tribes continuously enacts a form of colonial violence that seeks to preserve a white racial dictatorship. The paper will use Frantz Fanon’s scholarship on colonial violence and the dehumanization of Indigenous people as a framework to understand the history of legalized racism against Indigenous people in the United States. Fanon’s analysis allows us to understand how language is used to dehumanize Native people in order to establish a system of hierarchy that informs the societal roles of the colonizer and the colonized. The paper will then trace the use of racial stereotypes and brutalizing language against Native Americans in Supreme Court decisions under Justice Marshall. Further, the paper will argue that the racist precedents and language relied upon by the Supreme Court have operated as a form of colonial violence that serve to justify the denial of property, self–governance, and cultural survival of Native Americans
The Duty To Protect Survivors Of Gender-based Violence In The Age Of Covid-19: An Expanded Human Rights Framework
Get PDFMany commentators have referred to domestic violence and other forms of gender-based violence (GBV) in the age of COVID-19 as a “double pandemic.” Based on results of a mixed-methods study on the impact of the COVID-19 pandemic on GBV in South Florida, conducted by the Human Rights Clinic of the University of Miami School of Law, in close collaboration with community-based organizations,1 this article offers a proposal for an expanded normative human rights framework to address domestic violence and other forms of GBV. The local study sought to elucidate the pathways that link pandemics such as COVID-19 and GBV, highlight linkages with other social and economic factors, seek greater clarity on the conditions and systems that actually lead to safety, and inform intervention and response options. Study results show just how underfunded and unprepared service providers have been to respond to victims’ needs and priorities during this pandemic.2 This article’s human rights analysis and recommendations offer approaches that respond to the most affected communities’ needs and priorities and insist on improved policy and government responses during the current crisis and its aftermath. This study built off the fact-finding work of our Human Rights Clinic’s COURAGE in Policing Initiative (COURAGE = Community Oriented and United Responses to Address Gender Violence and Equality), which works with community-based organizations, police departments, and GBV experts locally, nationally, and globally on improving law enforcement responses to GBV. The project aims to increase access to safety and justice for all survivors, with a particular focus on black and brown women, immigrant women, disabled women, indigenous women, LGBTQI individuals, and other underserved populations. In collaboration with partners, the project is developing surveys, model policies, trainings, supervision protocols, reports, online resources, and systems of accountability for improving law enforcement responses to GBV, including research and tools specific to the COVID-19 context. But as the national dialogue transitioned away from law enforcement-centric solutions, and of course, as the pandemic set in in March 2020, the COURAGE project transitioned into a new iteration, which focused on a series of new research questions, namely: (1) How has the COVID pandemic impacted the service providers that interact with GBV survivors in South Florida?; (2) How have service providers responded to the new challenges?; and (3) What are the evolving needs of survivors and service providers throughout the pandemic? The ultimate goal of our research was to produce a series of recommendations that could be implemented across Miami-Dade County and nationwide, to address pressing immediate needs and to better prepare for future public health or other massive crises. Below, we first discuss the “double pandemic” phenomenon of increased domestic violence and other forms of GBV in times of COVID-19. Next, we explore the intersectional impact of the COVID-19 pandemic in the United States, as it relates to GBV survivors of color and from culturally-specific or underserved communities. Then, we offer a synopsis of our study results, and propose an expanded normative framework that broadens our understanding of how GBV survivors should be protected under international human rights law as well as domestic law. Finally, this article offers policy recommendations
Game of Thrones: Liberty & Eminent Domain
Get PDFThis Article analyzes the relationship between private property and the government’s power to expropriate it. When it comes to protecting private property from governmental expropriation, our Constitution is conflicted. On the one hand, the right to private property is a foundational principle that defines the American spirit, our history, and our culture. Yet, on the other hand, the Founders adopted the government’s superior authority over private property, that is, eminent domain, for public purpose and with just compensation, via the Takings Clause of the Fifth Amendment. This “private property conundrum” requires us to explore the limits of eminent domain relative to a person’s private property right in themselves, that is, their “persona.” This Article advances the thesis that every person in America possesses a right to the attributes of themselves or “persona,” which is protected against governmental exploitation. It develops that seminal, normative thesis through three tasks: (1) it presents a contemporary conflict between the private property rights of National Collegiate Athletic Association (“NCAA”) athletes and state governments that operate NCAA schools; (2) it argues that eminent domain and the Takings Clause of the Fifth Amendment should not apply to persona rights, particularly name, image, and likeness (“NIL”); and (3) it proposes a model code solution that society, policymakers, and government should adopt to prohibit the use of eminent domain to exploit NIL and other attributes of persona. Consequently, this Article concludes that States that operate NCAA member schools have wrongfully taken, and continue to wrongfully take, student athletes’ right to their persona
Re-Envisioning Child Well-Being: Dismantling the Inequitable Intersections Among Child Welfare, Juvenile Justice, and Education
Get PDFTwenty years after Shattered Bonds, Dorothy Roberts\u27 indictment that the family regulation system polices, disrupts, and restructures Black families and communities remains urgent. Black families remain overrepresented in foster care with enshrined disparate treatment and outcomes. Black children are more likely to be removed from their homes, and their longer stays in foster care are characterized by placement instability, overly restrictive placements, the risk of abuse and exploitation, and inadequate mental health and other services. Black children also have worse educational outcomes than even other children in foster care, are over-referred to the juvenile justice system, and are more likely to age out of foster care to face disturbing future outcomes. Given this dismal record, if our goal is to maximize the well-being of Black children, the last thing we should do is place them in foster care. Rather than improving life chances, foster care involvement fuels the cycle of poverty, undereducation, criminal justice involvement, housing instability, and poor health outcomes plaguing low-income Black communities.
The family regulation system interacts with two other systems marked by stark racial inequity-education and juvenile justice. These systems, individually and in concert, adopt approaches that result in and compound structural denials of opportunity. Each system uses seemingly neutral policies and practices that obfuscate the role of race and class and operate in particularly pernicious ways in the same poor communities of color. The mechanisms by which they disadvantage Black children share a common pattern. Black children are pathologized and labeled as defective and deviant, subjected to harsh and traumatizing treatment, and separated from their families and communities-which taken together destroys relationships, opportunities for healthy development, and educational access. The intersecting operation of these systems contributes to racial subordination by exacerbating trauma and leaving children without the educational and social-emotional skills to break out of the cycle of poverty, and further depletes neighborhoods with concentrated poverty of the human capital to be resilient. It is important to illuminate the mechanisms by which these systems intersect to entrench structural inequality, so that they can be dismantled.
This Symposium spotlights the burgeoning call for abolition of the family regulation system premised on the idea that the primary function of the system is punitive control of families of color and that meaningful reform is impossible. The carceral and family regulation systems are deeply interconnected, and Roberts and others advocate for abolition of all these systems in favor of radically different ways of meeting families\u27 needs. The goals articulated by prison abolitionists coalesce with child welfare abolitionist calls that envision healthy communities where families have the resources to thrive. As we work towards that vision, it is important to get a more holistic understanding of Black children in the family regulation system, within the context of their communities and the multiple, inter-connected systems that work together to limit opportunities. This Piece unpacks how the family regulation system magnifies harm to Black children through its interactions with the juvenile justice and education systems. By exploring the structural mechanisms through which these systems work together to compound disparity and perpetuate inequity, this Piece provides further evidence of the family regulation system\u27s failings and contributes to thinking about how we help children and families in the communities where they live, rather than through punitive practices.
This analysis is consistent with an ecological perspective that situates the child in their full environment, including their family, school, and neighborhood. The ecological perspective considers the reciprocal relationship between the child and their environment as well as the interlocking systems that produce the negative outcomes that Black children experience. The other theoretical frame emerges from scholarship on the ways state structures and cultural forces create racial hierarchies that endure for generations. To contribute to the child welfare abolition discussion, this Piece extends analysis beyond the family regulation system to understand how systems created by the state relegate poor children of color to the lowest rung in society, rather than helping children and families. This Piece will then offer solutions grounded in a vision of dismantled child welfare and juvenile justice systems, well-resourced educational systems, and strengthened communities with the capacity to foster the healthy development of children.
Part I will discuss the racialized outcomes in each system and the relevant features of the architecture by which U.S. society is organized around hierarchies. Part II will describe each system\u27s role in perpetuating disparity, focusing on the common themes of isolation, trauma, and the use of stereotypes and bias to dehumanize children. Part III will explore the harmful intersections among the child welfare, education, and juvenile justice systems underscoring the ways that interaction between these systems compounds harm. Part IV offers some community-centered strategies that account for intersecting systems and advance the move towards abolition
The Output-Welfare Fallacy: A Modern Antitrust Paradox
Get PDFA fallacy lies at the core of modern antitrust. The same scholars who successfully advanced a singular consumer-welfare goal simultaneously argued that output effects should be the exclusive criterion for analysis. This output-welfare framework entered mainstream discourse, was endorsed by enforcers and judges, and played a pivotal role in the Supreme Court\u27s recent Ohio v. American Express opinion. Yet despite its centrality, outputism has largely escaped notice.When exposed to systematic evaluation, the previously assumed link between output and welfare breaks down. A wide variety of conduct can push output and welfare in opposite directions. Moreover, purely outputist analysis is often unworkable in markets-for labor, social networking online search, and more-that are of particular interest to contemporary antitrust. Recognizing the Output-Welfare Fallacy offers substantial payoffs. It illuminates and undercuts a fundamental illogic that motivates outputist judicial decisions, which warrant swift reversal. Market power can be defined as the power to control competition, rather than power to profitably reduce output. Plaintiffs need not demonstrate an output reduction to carry their initial burden of proof Conversely, defendants need not prove that output increased in order to make out a valid procompetitive justification. In general, moving beyond the narrow confines of output-based analysis enables the application of a more coherent, practical, and efficient antitrust framework
