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The Drive to Advise: A Study of Law Students at a Pro Bono Brief Advice Project
Get PDFLaw school aims to teach lawyering skills as well as legal analysis. While all students must acquire the skills of legal analysis, research and writing, law schools may decide what other skills to teach. Students also acquire skills and habits in informal ways, through clerkship experiences or pro bono volunteer work. However, there has been almost no study of what “skills” students pick up in these informal ways, and whether there are skills that would better be learned as part of the curriculum. This study looks at the skill of legal interviewing employed by students in a pro bono brief advice setting. It asks whether students pick up the interviewing skills that legal scholars recommend, or whether there are marked departures from those recommendations. It answers this question by analyzing transcripts from forty-six law student-client consultations and discovers one significant variation from the recommended protocol -- students begin counseling the client before completing the interview. The article categorizes the types of counseling students volunteer during the interview and reveals some problems that can be created through premature counseling. The article theorizes both why students are driven to counsel during the interview and how education in interviewing might improve the situation -- both for the clients and for the students
Exploiting the Charitable Contribution Deduction’s Hypersalience
Get PDFHypersalience describes the cognitive error that occurs when taxpayers are highly aware of a tax provision generally, but fail to correctly perceive its associated limitations. The charitable contribution deduction provides a strong example of hypersalience as taxpayers have general awareness that tax benefit follows charitable giving, but often fail to understand the deduction’s limits—most notably the standard deduction’s preclusion to any direct tax benefit for charitable giving. As cognitive error drives inaccurate perception of the tax law, the question arises: what, if anything, should the government do to correct taxpayer understanding?
This paper considers this question from two perspectives. The first is market or economic salience, a measure of salience based on taxpayer reaction towards the market. The case is made here for exploitation of hypersalience—an argument that endorses the status quo. Effective curtailment of hypersalience could bear with it constitutionally worrisome burdens on free speech and an overregulated, less viable charities sector. Benefits of leaving hypersalience intact include a more vibrant charities sector. In some cases, giving induced by hypersalience could result in zero utility loss.
The second measure, political salience, considers taxpayer reaction as expressed through the political process. This paper argues that exploitation of hypersalience is justifiable in that taxpayers could interpret additional regulation to correct hypersalience as a tax increase (or at least as the denial of perceived tax benefit). Given the taxpaying electorate’s strong aversion to taxes, in an era of political polarization and massive deficits, Congress can ill afford to expend constrained political capital unwinding taxpayer cognitive bias with no increase in revenues
Does NEPA Help or Harm ESA Critical Habitat Designations? An Assessment of Over 600 Critical Habitat Rules
Get PDFThis paper tests whether impact analysis pursuant to the National Environmental Policy Act delays federal decision making, and whether the NEPA process results in significant changes to the substance of federal decisions. We reviewed 636 rules designating critical habitat for species that are protected by the Endangered Species Act. Because of a circuit court split, some of these rules were subject to NEPA analysis while others were not. In comparing these two groups we found that rules that underwent NEPA analysis were completed more than three months faster than rules that were exempted from NEPA review. We also found that rules that were subject to NEPA review underwent less change in the size of the habitat area between the proposed and final rule than those that were exempted from NEPA
Resilience Theory and Wicked Problems
Get PDFThis Article posits, first, that resilience theory offers important insights into our understanding of wicked problems and, second, that to understand the value of resilience theory to wicked problems, we should start by going back to the context of Rittel’s and Webber’s 1973 delineation of the ten characteristics of a “wicked problem.” Rittel and Webber were in fact among the vanguard of researchers beginning to articulate the realization that social and ecological systems — now social-ecological systems, or SESs — do not follow the predictable and mechanistic rules of Newtonian physics. As a result, SESs do not yield, at least not over the long term, to engineering-based “solutions” designed to satisfy contemporary priorities and desires. Instead, like resilience theorists, although lacking resilience theory’s vocabulary, Rittel and Webber acknowledged that change is the norm for both social and ecological systems and that the realities of complex adaptive social-ecological systems make “once and done” planning and management impossible.In re-reading Rittel and Webber almost 50 years later, however, it becomes useful to pull apart the blending of social capriciousness and ecological panarchy that for them together added up to “wickedness” in social problem solving. Social capriciousness — the fact that social priorities and desires can both evolve over time and flip in response to political events such as elections — has become the far more accepted component of “wickedness”; few anymore expect social “solutions” to persist indefinitely. However, that same acceptance of continual, often unpredictable, change has not yet translated to the ecological side of wicked problems — which is precisely why resilience theory can help 21st-century citizens to formulate more productive approaches to those problems
Is Biopharma Ready for the Standards Wars?
Get PDFThis symposium contribution sheds new light on Momenta v. Amphastar, a recent federal case in which issues relating to standardization and patent disclosure that have previously been observed in the semiconductor, computing and telecommunications sectors found their way into a dispute between two biosimilar manufacturers. One such manufacturer, Momenta, participated in the development of a standard for testing the purity of generic enoxaparin under the auspices of the United States Pharmacopeial Convention, but failed to disclose that it had applied for a patent on the testing method. When Momenta later sued Amphastar for infringement based on its use of that testing method, Amphastar raised defenses of waiver and equitable estoppel, then brought antitrust claims against Momenta and its distribution partner Sandoz. Amphastar prevailed at the district court on all three theories, obtaining a ruling that Momenta\u27s patent was unenforceable. This case demonstrates that issues surrounding the acquisition and disclosure of patents on standardized technologies have more salience in the biopharma sector than commonly believed. As such, standards organizations operating in this sector should ensure that their policies and procedures are robust enough to delineate clearly the obligations of participants with respect to patents covering standardized technologies, and organizations that participate in biopharma standards-development should heed the valuable lessons offered by more than three decades of litigation and policy making in the technology sector
Crisis at the Pregnancy Center: Regulating Pseudo-Clinics and Reclaiming Informed Consent
Get PDFCrisis Pregnancy Centers (CPCs) adopt the look of medical practices — complete with workers in scrubs, ultrasound machines, and invasive physical exams — to deceive pregnant women into thinking they are being treated by licensed medical professionals. In reality, CPCs offer exclusively Bible-based, non-objective counseling. Numerous attempts to regulate CPCs have faced political roadblocks. Most recently, in NIFLA v. Becerra, the Supreme Court held that state efforts to require CPCs to disclose that they are not medically licensed are unconstitutional violations of CPCs’ First Amendment right to free speech. In the wake of that decision, pregnant women in crisis — a disproportionate percentage of whom are low-income women, minority women, or women in vulnerable or dangerous situations — continue to be subject to CPCs’ ideological marketing, masquerading as medical advice.This Article employs tort law to offer a novel way to regulate CPCs’ deceptive practices. It proposes that women who submit to physical exams or ultrasounds under CPCs’ false pretenses could successfully raise a battery claim. The intimate touching of a woman would most certainly be considered objectively offensive, and while the woman might technically consent to the touching, this consent is meaningless if it is based on misrepresentations. Contrary to popular understanding, the touching need not be intentionally malicious or result in physical injury to the plaintiff.This Article makes two contributions to the literature. First, it provides a practicable, novel solution to an urgent and timely issue. By relying on private causes of action, this Article’s proposal sidesteps the collective action problems and political willpower obstacles that have long hampered larger-scale attempts to regulate CPCs. It places the injured woman in the driver’s seat and allows her to be compensated for the dignitary harm imposed when CPCs use deception to gain access to her body. Second, this Article contributes to robust literatures in torts, informed consent, and medical ethics by reinforcing an increasingly blurry line between medicine and pseudo-medicine. Informed consent means something; it is not merely a vehicle through which ideology can be shoehorned. Where CPCs are not licensed, they should be sued for battery, which honors the individual’s dignity and is not deferential to an industry standard of care. Physicians should be allowed to have political voices. So, too, should pro-life activists. But each should have their policy debates, and win or lose them, in the political sphere. It does violence to the physician-patient relationship, and the trust that it requires, when this relationship is leveraged for ideological gains
Natural Resources and Natural Law Part II: The Public Trust Doctrine
Get PDFNatural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those advocates asserted their position in part through civil disobedience, sometimes including armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and the right to bear arms. Prior appropriation doctrine is consistent with secular natural law theory. Existing positive law, however, accepts prior appropriation for western water rights but rejects its application to grazing rights on federal public lands, for reasons consistent with secular natural law. Natural law doctrine allows citizens advocate for change but requires them to respect the positive law of the societies in which they live. Separation of church and state also bars natural law claims based on religious doctrine unless those principles are also adopted in secular positive law.This sequel addresses claims from the opposite side of the political-environmental spectrum that natural law provides one justification for the public trust doctrine, and that courts should enforce an atmospheric public trust to redress catastrophic global climate change. Although some religious groups have embraced environmental agendas supported by religious doctrine, public trust claims are secular in origin. Just as natural law provides support for prior appropriation, it supports the idea that some resources, such as water, wildlife, and air, should be held in common rather than made available for private ownership. From this perspective, the two doctrines merge into a single issue of resource allocation. Which resources are best made available for appropriation as private property, and which are best left in common? Natural law theory helps to explain the liberty and welfare goals that inform those choices. Positive law embraces the public trust doctrine with respect to some natural resources and does not preclude its applicability to the atmosphere or other common resources
Changing Consultation
Get PDFAs climate change and fossil fuel extractive industries ravage Indian country and burden many Indigenous communities with risks, the negative impacts on tribal sovereignty, health, and cultural resources demand consultation between tribes and the federal government. Yet, this is an area where the law fails to provide adequate guidance to parties who should be engaging or are already engaging in tribal consultations. The law, both domestic and international, may require that consultation occurs, but leaves parties to determine themselves what constitutes effective and efficient consultation. The legacy of the law’s inability to provide effective guidance has generated a litany of cases of litigation and mutual hard feelings, a glaring example being how the legitimacy consultative activities was debated and misunderstood in the Standing Rock Tribe’s resistance against the Dakota Access Pipeline. This article hopes to fill the void by turning to other disciplines – ethics and Indigenous studies, for guidance on how effective consultation may be achieved.To accomplish this, the article begins with an examination of relevant domestic and international law. While true that claims exist under both domestic and possibly international law to require the federal government to engage in government-to-government consultation with tribes, very little guidance is given as to what that consultation should look like and which sovereign, whether the tribe or the federal government, gets to dictate the process of consultation. Further, existing domestic and international law provides little as to the scope of such consultation or when it is triggered. Given the law’s inability to fully answer the question of what effective consultation looks like, the article suggests that ethics and morality literature, especially the literature emerging from Indigenous studies, is helpful in framing normative judgments regarding effective consultation.From a moral perspective, consultation can be linked to the norm that all parties should have a chance to give their free, prior and informed consent to the actions of any other party whose actions may impact them in some way. Impacts include harms or opportunities to share in any future benefits. In the literature on ethics, “free,” “prior” and “informed” consent are taken as being defined in certain ways. While there are a range of legal and other purposes for consultation, morally speaking, consultation can be understood as one process or strategy for fulfilling the general moral duty of consent. Further, emerging Indigenous studies literatures pertaining to ethics add additional moral requirements to these definitions.The idea of consent, as a moral norm, suggests a relationship between the U.S., tribes, and other parties that would flow much more like a partnership than a formal consultation, and where tribes would have veto rights (the right to say “no”) to any actions that would impact them. To demonstrate this concept, the article presents two examples: the Dakota Access pipeline controversy, an example of ineffective consultation, and the Northwest Forest Plan, an example of deliberate approaches to monitor the effectiveness of consultation. Based on these examples combined with the ethics literature, the article concludes with specific strategies that parties might employ to ensure successful tribal consultations. Beyond filling the void created by current federal law, the article therefore constitutes a valuable and unique addition to the existing scholarship in its interdisciplinary approach, and guidance to parties engaged in tribal consultations
When the Wrong People are Immune
No full textAfter a disaster such as the COVID-19 pandemic, there will be an irresistible desire to blame others. Despite documented failures in the federal government’s response to the pandemic, injured individuals will not be able to hold it accountable due to the broad application of governmental immunity. Congress and state governments have provided targeted immunity to various device manufacturers and emergency volunteers. However, the one group with huge targets on their backs are individual physicians, who are often making impossible choices that are reasonable at the time, but might not appear reasonable to a jury after the fact, and with the bias of hindsight. Recognizing that the potential for liability might cause undue psychological stress on health care providers, this essay argues for statutory immunity that protects them from rationing and other health care decisions that are made in good faith, and that are in compliance with documented state, institutional, or professional pandemic-response guidelines
Learning from the Past and the Pandemic to Address Mental Health in Tribal Communities
Get PDFWhen COVID-19 hit, it devastated Tribal communities. Based on past federal policies, American Indians and Alaska Natives suffer various health and socioeconomic disparities that make them not only more vulnerable to contracting COVID-19, but also more susceptible to negative outcomes once infected. Much attention has focused on COVID-19 infection rates and related deaths in Indian country. However, the pandemic’s reach has gone beyond physical impacts on the body. COVID-19 has also affected the mental health of Tribal members and their access to mental health services. This Article dives into the effects of the coronavirus pandemic on the mental health and general well-being of Tribal communities. A brief history of federal and Tribal relations is provided, followed by a summary of the current state of mental health in Indian country. The impacts of COVID-19 on Tribal communities is discussed as well as the rise of telehealth to provide much needed mental health services during the pandemic. The article concludes by providing recommendations to continue the progress made to fill the historic gap in mental health services in Indian country post-pandemic