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Avoision: When Government Lawyers Turn the Sovereign Against Itself
No full textLawyers sometimes use legally permissible but ethically dubious strategies to avoid the law and at other times they cross the line into illegal law evasion. Between the two is a gray area of conduct highly likely, but not certain, to be illegal known as law “avoision.” Lawyering at the outer limits of the law is controversial in the private sector when lawyers represent clients against the government or against other private parties. The better interpretation of the law may stand on the other side, and the lawyer must decide how far to go in an arguably illegal direction on behalf of the client.
The focus of this Article is lawyers who represent the government, and the lasting damage when avoision becomes the modus operandi inside the government. Government lawyers avoiding or evading the law, or both, become a serious threat to their own clients. In a constitutional republic, the law is the foundation upon which the government client rests. The government lawyer represents the law itself. The law, and this means the better interpretation of the law, must take priority when it conflicts with the objectives of a political superior who possesses power only by virtue of the legal order. Law avoision in this context is fundamentally disloyal to the client.
This Article discusses specific examples of law avoision in government including Justice Department memoranda justifying torture, a President’s attempt to use the Justice Department to overturn an election, Members of Congress and even Supreme Court Justices using law avoision to circumvent financial disclosure requirements, and states using law avoision to circumvent civil rights and voting rights of racial minorities. Law avoision in all these contexts does grave harm to the government and, if taken to extremes, could involve government lawyers dismantling democracy itself.
To combat law avoision inside the government, this Article proposes a clarification of who the client is so government lawyers recognize that the law is their client and that their professional obligation is to advance the best interpretation of the law, not the interpretation of the law that will enable a political superior to do whatever they want to do. This Article also proposes the establishment of a government-wide Office of Professional Responsibility to render formal opinions on, educate and in some instances adjudicate, issues of professional conduct for government lawyers
Standardization and Accuracy of Race and Ethnicity Data: Equity Implications for Medical AI
No full textThe rapid integration of artificial intelligence (AI) into healthcare has raised many concerns about race bias in AI models. Yet, overlooked in this dialogue is the lack of quality control for the accuracy of patient race and ethnicity (r/e) data in electronic health records (EHR). This article critically examines the factors driving inaccurate and unrepresentative r/e datasets. These include conceptual uncertainties about how to categorize races and ethnicity, shortcomings in data collection practices, EHR standards, and the misclassification of patients’ race or ethnicity. To address these challenges, we propose a two-pronged action plan. First, we present a set of best practices for healthcare systems and medical AI researchers to improve r/e data accuracy. Second, we call for developers of medical AI models to transparently warrant the quality of their r/e data. Given the ethical and scientific imperatives of ensuring high-quality r/e data in AI-driven healthcare, we argue that these steps should be taken immediately
States as Shields
No full textState laws that aim to shield providers of reproductive health and gender-affirming care from the punitive actions of out-of-state officials raise thorny questions. Can the federal courts, Congress, or the Trump Administration require New York officials to enforce a Texas ban on abortion or gender-affirming care against a New York doctor who prescribed medication to a patient in Texas via telehealth? If so, how might New Yorkers’ access to health care be affected? If not, will interstate commerce and travel preserve some degree of access for Texans?
Disputes over reproductive health and gender-affirming care are putting new pressure on doctrines that define the scope, limits, and purposes of the sovereignty of each state in relation to the federal government, to its sister states, and to the populace it is responsible for protecting. Judges called on to resolve these disputes will need to engage in careful line drawing with respect to doctrines that empower states to protect public rights, obligate states to give full faith and credit to certain acts and judgments of other states, and limit federal power to regulatestates as states.
This Article contributes to discourse on horizontal federalism, state powers and duties, and the public-private divide by developing principled and complementary interpretations of full faith and credit requirements for states and anticommandeering and anticoercion limits on federal power that share a foundation in the doctrine of parens patriae. It argues that judges, advocates, and legal scholars should understand parens patriae as a broad doctrine recognizing the coequal sovereignty of states, in relation to each other, as protectors of distinctively public, collectively held rights within their borders, rather than being confined to its best-known application as a doctrine giving states Article III standing to sue in federal courts. This Article proposes the following definition of parens patriae as it has been used by the Supreme Court in relation to constitutional federalism, divided into numbered elements for the purposes of explaining and substantiating this Article’s claims: A (1) state government, (2) acting through any of its three branches, performs a constitutionally significant role as parens patriae when it (3) asserts or defends its interest as a sovereign government co-equal to its sister states (4) in protecting its populace at large from harms that are widespread and not exclusively traceable to identifiable individuals who have capacity to vindicate their own interests (5) against private parties or sister states, but not against the federal government to protect the state’s populace from the operation of federal law. When read in this broader context, the Court’s parens patriae precedents offer an untapped source of guidance for understanding the role states play in shielding their residents from harm, including, but not exclusively, with respect to reproductive health and gender-affirming care
Securitizing the University
No full textSince October 7, 2023, public and private actors have doubled down on efforts to securitize the American university. In large part, these initiatives aim to quash a vocal pro-Palestine movement that has become highly visible across U.S. campuses since October 7th. In targeting this group, these efforts have variously treated the university as an “object” of national security, namely, as a potential site of national security risk, while simultaneously encouraging or pressuring universities to “participate” in national security, namely, by actively and, in many cases, voluntarily furthering U.S. national security objectives. The university’s status as object of and participant in national security has a long history, dating back to World War II and continuing in relatively unbroken fashion to the present moment, at least until recently.
This Article examines the university’s historical relationship to the U.S. national security state—as both object of and participant in national security—and situates current efforts to securitize higher education against that backdrop. While this recent securitization drive has accelerated and expanded since President Donald Trump took office in January 2025, this Article focuses on the origins of those efforts during the last fifteen months of the Biden administration. In doing so, this Article demonstrates how this recent chapter in the university’s securitization comports with endemic trends in U.S. national security, which include the maintenance of U.S. global hegemony; the anti-Palestinian animus at the heart of U.S. counterterrorism laws; a tendency to create “enemies”; and the important role of private parties in shaping U.S. national security law and policy. Together, this analysis demonstrates that, rather than being aberrational, this current moment in the university’s securitization is an unsurprising and predictable consequence of how U.S. national security has long operated
Weaponization of Taxation: Sovereign Tax Immunity as a National Security Tool
No full textAmidst calls to reconceptualize taxation as a national security tool, legislators are reexamining how the United States taxes foreign governments. Federal income taxation of foreign governments—what this Article terms “the law of immunity from taxation” or “sovereign tax immunity”—strongly influences whether and how foreign governments pursue investment in the United States. This impact on international business transactions indicates sovereign tax immunity has the potential to be a powerful national security tool. Yet, despite its import, the law of immunity from taxation has been underexplored and undertheorized. This Article steps into this gap in discourse by challenging the way recent legislative proposals seek to wield sovereign tax immunity as a national security tool.
Employing a unique interdisciplinary analysis that bridges the fields of national security policy, tax law, and international law, this Article demonstrates that modifying sovereign tax immunity should not be taken lightly. The law of immunity from taxation is a medium through which the United States expresses its interpretation of the customary international law of sovereign immunity. Certain changes to this aspect of taxation—including those advanced in recent legislative proposals—push the United States into expressing an understanding of sovereign immunity at odds with its own long-held interpretations of international law. Where this occurs, changes to tax immunity risk damaging the legitimacy and development of international law, injuring the United States’ international reputation, harming relationships with allies and partners, and triggering hostile reciprocal action. To the extent legislators seek to leverage sovereign tax immunity to achieve national security goals, these outcomes can overshadow or even undermine their objectives.
But such an eventuality is not a foregone conclusion; through consideration and measured drafting, it can be avoided to great success. This Article concludes by offering a framework for further action that guides legislators in effectively wielding sovereign tax immunity to advance U.S. foreign policy and national security goals
Prima Facie Regulatory Capture: Lessons from EPA’s Regulation of Glyphosate and PFAS ‘Forever Chemicals’
Full text linkEconomic History and the Remaking of Family Law
No full textIn looking at the history of family law, we locate family law – and the status of women and children within it – as a function of political economy. That is, family law is shaped by a societal system that allocates access to, and control of, sources of wealth, decision-making power, and responsibility for dependents. As the nature of family assets has changed from land to male wage labor to two incomes and a complex set of complementary employer and state-provided benefits, so too have family dynamics and, ultimately, family law. They have evolved into the contemporary system, with a distinct allocation of decision-making power necessary to channel greater investment into children, manage the relationship between two more financially independent adults, and coordinate the investments in more complex family relationships.
While these legal changes govern all families, families do not necessarily interact with the legal system in the same ways. As a practical matter, couples with assets tend to drive the legal changes as they are more likely to bring cases that produce precedent-setting legal developments or engage in the political lobbying necessary to enact legislative changes. At the same time, couples without assets often form families, dissolve them, and form new ones without necessarily interacting with the legal system at all. This makes family law, that is, the body of statutes and decided cases, “middle class family law,” reflecting and reinforcing the norms of those with assets.
In this article, we trace both the evolution of the dominant family law of the middle class as these doctrines have changed in response to new economic systems, and the ways that families without assets have emerged from the shadows of the law, becoming more visible over time and thus posing more of a challenge to mainstream doctrines
Designer Organs: Ethical Genetic Modifications in the Era of Machine Perfusion
No full textGene therapy is a rapidly developing field, finally yielding clinical benefits. Genetic engineering of organs for transplantation may soon be an option, thanks to convergence with another breakthrough technology, ex vivo machine perfusion (EVMP). EVMP allows access to the functioning organ for genetic manipulation prior to transplant. EVMP has the potential to enhance genetic engineering efficiency, improve graft survival, and reduce posttransplant complications. This will enable genetic modifications with a vast variety of applications, while raising questions on the ethics and regulation of this emerging technology. This review provides an in-depth discussion of current methodologies for delivering genetic vectors to transplantable organs, particularly focusing on the enabling role of EVMP. Organ-by-organ analysis and key characteristics of various vector and treatment options are assessed. We offer a road map for research and clinical translation, arguing that achieving scientific benchmarks while creating anticipatory governance is necessary to secure societal benefit from this technology
Nipping it in the Bud: The Promise and Perils of Tort Litigation in Addressing the Health Harms of High-THC Products
No full textIn the last decade use of marijuana has skyrocketed. With the legalization of marijuana in states across the country, a nascent but increasingly powerful cannabis industry has formed. This industry has not only introduced cannabis products into the mainstream, but it has created high-THC products more powerful than anything found in nature or previous black markets. These products, including oils, vapes, and edibles, may have health effects that are unlike any risks that researchers have previously identified with cannabis. Science has started to sound the alarm, but the issue has remained unaddressed in the law. Only two states have introduced any regulations of THC levels, and no legal scholarship has examined how the existence of high-potency marijuana and its health effects may change litigation.
This Essay analyzes the potential claims that plaintiff-side litigators and state attorneys general may pursue against companies creating high-THC products. After explaining the current legal and medical research related to high-THC products, the Essay predicts the likelihood of cannabis litigation succeeding. It does so by analyzing two impactful examples of public health litigation: tobacco and opioids. The Essay concludes that litigation can be a useful tool in protecting populations from the harms of high-THC products, but it notes lessons from the tobacco and opioid litigation that plaintiffs can heed to strengthen their lawsuits against the cannabis industry