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Scientists\u27 Perspectives on Ethical Issues in Research with Emerging Portable Neuroimaging Technology: The Need for Guidance on Ethical, Legal, and Societal Implications (ELSI)
No full textDeployment of new, more portable, and less costly neuroimaging technologies such as portable magnetoencephalography, electroencephalography, positron emission tomography, functional near-infrared spectroscopy, high-density diffuse optical tomography, and magnetic resonance imaging is advancing rapidly. Given this trajectory toward increasing use of neuroimaging outside the hospital, we sought to identify ethical, legal, and societal implications (ELSI) of these new technologies by understanding the perspectives of those scientists and engineers developing and implementing portable neuroimaging technologies in the United States, Europe, and Asia. Based on a literature review, we identified and contacted 19 potential interviewees and then conducted 11 semi-structured interviews in English by Zoom. Analysis of the interviews revealed key themes and ELSI issues. Developers reported that without proper ELSI guidance, portable and accessible neuroimaging technology could be misused, fail to comply with applicable regulation and policy, and ultimately fall short in its mission to provide neuroimaging for the world. Our interviews suggested that ELSI guidance should address differences between imaging modalities because they vary in capability, limitations, and likelihood of generating incidental findings
Prohibition Constitutionalism
No full textThis Review describes and applauds David Pozen’s book, The Constitution of the War on Drugs, and offers its own intervention. Scholars have traced the failed addiction policies exemplified by the “war on drugs” to underlying root causes including racism, politics, and moral stigma. The core contribution of The Constitution of the War on Drugs is to show that constitutional law is an additional such root cause. The book does so by unearthing ways the Constitution has accepted and abetted carceral addiction policy. In pointing to constitutional law as a root cause of the drug war and, so, as a potential site for contestation against carceral drug policy, the book connects criminal law, health law, and constitutional law in ways that should enrich all three fields.
For all the book’s strengths, however, The Constitution of the War on Drugs does not go far enough in mapping the interaction of constitutional law and addiction policy that it uncovers. In surveying “near misses” during the twentieth century when constitutional litigation came close to invalidating prohibitionist drug policies, the book limits its study to constitutional law’s negative potential to impede carceral drug policies. This prohibitionary approach to constitutionalism leaves unaddressed and unrecognized important ways that constitutional law shapes which addiction policies are enacted in the first place—ways constitutional law influences the repeated choice of carceral drug policy over more effective evidence-based policies such as investments in treatment, housing, and social supports. Doing so misses promising contemporary sites of contestation and risks playing into President Nixon’s brilliantly pernicious conceptual framing of addiction policy as a punitive war on drugs. The book’s approach also risks bolstering contemporary anti-regulatory trends illustrated by ongoing attacks on the administrative state. In further developing the interaction of constitutional law and addiction policy that The Constitution of the War on Drugs uncovers, future scholars should consider thick, affirmative conceptions such as Dorothy Roberts’s freedom constitutionalism or Parmet’s public health constitutionalism
When an Indicted Candidate Wins the Presidency: What Happens to the Trials If Donald Trump Wins the Election?
Get PDFFor the first time in U.S. history, one of the two leading candidates for President is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts. This set of unprecedented circumstances raises a series of urgent legal questions of first impression, particularly in the case in which Donald Trump wins the election. Three questions in particular require urgent examination in the run-up to the 2024 presidential election, and potentially in the immediate post-election period, depending on the outcome. First, with regard to the federal charges prosecuted by the Department of Justice, does the Department’s fifty-year old policy of never indicting a sitting President apply to a previously indicted individual who is elected President after indictment and in the middle of ongoing criminal trials? Second, if the Department of Justice’s policy does not block continuing with the prosecution, would the President’s usual right of removal apply to allow him to fire Special Prosecutor Jack Smith or otherwise use the President’s control of the Department to effectively end the two federal criminal cases against him? And third, with regard to state prosecutions, how protected would each of these state processes be in the face of claims of federal preemption and arguments of executive privilege, immunity, and authority? Could the State of New York proceed to sentence Trump for his felony convictions and potentially imprison him? Could Georgia prosecutors encumber the presidency by insisting on taking their case against him to trial? In answering each of these questions this Essay considers constitutional history, caselaw on presidential immunity (including the Supreme Court’s recent decision in Trump v. United States), and the implications for the rule of law—and hence for the longevity of U.S. democracy—if a sitting President is effectively above the law
The Three-Verdict Problem
Get PDF!n Scotland, for hundreds of years, juries have chosen between three criminal verdicts: “guilty,” “not guilty,” and “not proven.” The “not proven” verdict’s legal meaning remains mysterious. In this article, I aim to describe and solve the problem. Applying modern ideas about standards of proof to the intellectual history of “not proven” yields eight plausible meanings for the verdict. With the extent of the problem in mind, I offer a solution. In the three-verdict system, jurors should deliver a “guilty” verdict when they believe that the accused has committed the crime and a “not guilty” verdict when they believe that the accused has not committed the crime. The “not proven” verdict is for all other states of mind. Clarifying this question matters for determining whether the verdict’s existence is just. It also offers some evidence for how the criminal standard of proof works in other legal systems
Definite Convictions: United States v. Alt and the Seventh Circuit\u27s Prohibition on Defining Beyond a Reasonable Doubt
Get PDFThe Seventh Circuit prohibits judges and attorneys from defining “beyond a reasonable doubt” to jurors. While United States v. Alt crystalized this prohibition in early 2023, the circuit has effectively banned definition of the phrase for much longer. Yet, a growing consensus of psychological research into the standard reveals that when left undefined, it fails to protect criminal defendants from uncertain convictions that violate the requirements of due process. What’s more, the phrase was never supposed to serve as a standard of proof in the first place—its historical origins reveal it functioning to assuage the spiritual concerns of early Christian jurors when sitting in judgement of defendants. Nonetheless, the Supreme Court has refused to require lower courts to define the phrase or give any meaningful guidance in their attempts to do so, enabling Alt’s misguided prohibition. This Note argues that the Seventh Circuit’s prohibition against defining “beyond a reasonable doubt” violates Due Process, threatens judicial legitimacy, obstructs the development of American criminal law, and is ethically wrong. To achieve this, this Note engages in an interdisciplinary investigation of the standard, exploring it as an object of occult history, American jurisprudence, and psychological study. This Note concludes by marshaling this interdisciplinary understanding into a genealogical critique of the Alt prohibition as a legal solution sufficient to redirect the Seventh Circuit’s precedent and offering practical workarounds and implications for criminal practitioners
“Criminalizing” Depositions in Arbitration
Get PDFCivil litigation--style deposition practice is preventing commercial arbitration from reaching its full potential as an economical, efficient alternative to a civil lawsuit. Although there is consensus among alternative dispute resolution experts that meaningful limits must be imposed on arbitration discovery to unlock the efficiency benefits of arbitration, depositions continue to feature prominently in commercial arbitrations for at least three reasons. First, civil litigators are addicted to depositions. They reflexively propose overdone deposition practice in arbitrations that replicates their litigation experience. Second, arbitrators may hesitate to disallow deposition discovery out of fear that their awards will be vacated for failure to hear material and pertinent evidence. Third, arbitrators are justifiably concerned that they will be punished in the arbitral marketplace if they deny the deposition requests of the parties and lawyers that select them. These dynamics dictate that consequential change will remain elusive in this area unless the rules regarding deposition practice in commercial arbitrations are amended. While these rules currently are more restrictive in some ways than the rules of civil procedure, they are toothless. They often allow some discovery depositions as a matter of right and grant the arbitrator discretion to permit an unlimited number of discovery depositions upon a modest showing of “cause” or “need.” This Article is the first to propose that the rules of federal criminal procedure--which flatly outlaw discovery depositions--be used as a model for modifying arbitration rules concerning the availability of discovery depositions. Doing so will make arbitration more efficient without meaningfully compromising the ability of arbitration parties to pursue and defend their claims. The fact that prosecutors and defense counsel routinely try high-stakes criminal cases without the benefit of discovery depositions provides strong evidence that arbitration parties can effectively represent their interests without the need for discovery depositions. Further support for this proposal can be found in the case law which holds that the cross-examination of prosecution witnesses by criminal defense counsel at trial (without the benefit of a prior deposition) satisfies a criminal defendant\u27s Confrontation Clause rights. If criminal defendants can be deprived of their liberty without deposing the prosecution\u27s witnesses prior to trial, it is fair to require the parties to an arbitration to examine witnesses at a hearing without the added layers of delay and cost associated with discovery depositions
The Second Amendment’s Racial Justice Complexities
Get PDFThe relationship between the Second Amendment and racial justice is complicated. That\u27s because the relationship between penal administration and racial justice is complicated. The briefing in New York State Rifle & Pistol Association v. Bruen perfectly proves this point. A group of public defenders favored striking down New York\u27s concealed carry licensing law to further racial justice, while a group of civil rights organizations argued that the law should be upheld to further racial justice. What the briefing revealed is that Black people have an interest in being free from racially disparate policing and prosecution of all criminal laws, including gun laws. But Black people also have an interest in being safe from gun violence, which they are disproportionately victims of--both at the hands of private citizens and police. Bruen ignored these interests when it announced a “history and tradition” test for judging the constitutionality of gun laws, a test that disempowers Black people by tying the constitutionality of gun regulation to a time when Black people were not fully part of the polity. In so doing, the Court frustrated another racial justice interest: the democratic interests of communities of color to regulate firearms in a manner they best see fit. When “aiming for answers,” we must acknowledge the racial justice complexities that arise in the context of gun regulation, and propose solutions that promote Black people\u27s interests in liberty, safety, and self-governance
