Monthly Archives: July 2019

Implementing Prospective Autonomy

Alberto B. Lopez & Fredrick E. Vars, Wrongful Living, 104 Iowa L. Rev. 1921 (2019).

Advance directives are often recommended, but rarely used. The latter fact is an alarming one, and Professors Alberto Lopez and Fredrick Vars tackle this problem in their Article Wrongful Living. After identifying the root causes of this state of affairs, they provide innovative practical and conceptual proposals for implementing the wishes of those who have taken the time to exercise their prospective autonomy. They argue for a tripartite solution to the persistent problem of advance directive underutilization. First, they recommend creating a nationwide registry of advance directives. Second, they suggest that attorneys be exposed to professional discipline and malpractice liability for failing to enter advance directives into said registry. Third, they reconceptualize the nature of the damages that flow from medical interventions that lead to undesired continued life, making wrongful living claims potentially more cognizable to courts. This holistic analysis of advance directives is admirable for providing a realistic blueprint for law reform, and the Article is a must-read for those scholars working in the areas of incapacity planning, health law, and torts.

Lopez and Vars first perform some necessary brush clearing by discussing the historical and philosophical background of advance directives. They detail the legal history of the device, including its origins in informed consent doctrine, the flurry of state and federal legislative activity that allowed and promoted its use, and the high-profile cases of Karen Ann Quinlan and Nancy Cruzan. They then turn to the thornier philosophical issues around advance directives, focusing on the Ronald Dworkin-Rebecca Dresser debates on their utility or normative desirability. They conclude, unsurprisingly, that advance directives do protect important autonomy or dignity interests, creating a need to analyze how best to legally implement them. Continue reading "Implementing Prospective Autonomy"

Recovery for Emotional Distress in Tort

Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 Law Q. Rev. 602 (2018).

In English law, there is no general duty not to cause reasonably foreseeable mental distress, even if the distress-causing conduct is culpable. Indeed, the same is true in respect of psychiatric harm. What, however, is the recoverability of damages for mental distress that occurs as a result of a tortious wrong to the person who suffers the distress? Suppose, for instance, that A negligently damages B’s property with the result that B suffers foreseeable mental distress. Here, B’s claim is not that A owed a duty of care not to cause reasonably foreseeable mental distress by A’s act. It is that B is entitled to damages for loss consequential upon a violation of B’s right that A not negligently damage B’s property. This is the question skilfully examined in Descheemaeker’s article. He explores the extent to which damages are recoverable for emotional harm, defined as “any unpleasant emotional reaction” (P. 603), suffered as a consequence of rights violation. Interestingly, he concludes that the law is largely consistent with a simple principle: damages for consequential (or “parasitic”) emotional harm are, in principle, recoverable, within the usual limits of causation and remoteness, for the violation of any tort law right.

Descheemaeker begins by considering why this simple principle is not generally explicitly recognised by the law. Compare damages for economic loss. It is approaching trite law that damages may be recovered for economic loss that is consequential upon the violation of a right, even if a person’s economic interest does not serve to generate wide-ranging freestanding rights that others not set back that interest. Yet it seems true, as Descheemaeker says, that most (English) tort lawyers would be considerably more doubtful of the proposition that any reasonably foreseeable emotional harm that results from the violation of right is recoverable in damages. Continue reading "Recovery for Emotional Distress in Tort"

Democratized Content and Its Discontents

Claudia E. Haupt, Licensing Knowledge, 72 Vand. L. Rev. 501 (2019).

There once was a dream that was the Internet. But now the harsh morning light of Internet reality propels us to consider whether to get out of bed. Questions of content (un)trustworthiness seem omnipresent, and the liability protections of Section 230 of the Communications Decency Act are showing their age, in the opinion of their Congressional sponsors. Debates over “fake news,“ “deep fakes,” “shallow fakes,” and hybrid warfare reveal diverging ethical defaults, even among similarly situated Internet companies. Anti-vaxxers’ and medical professionals’ opinions are mistakenly considered equivalent by a portion of Internet users, and algorithms make personalized content recommendations that sometimes perpetuate false and radical beliefs. Recent indictments remind us that jurists have never resolved the question of who counts as a “publisher” on the Internet (and what duties of care that role entails). Meanwhile, machine-learning practitioners, information security experts, and other technology professionals debate the construction of shared ethical codes and professional practices. Each of these conversations inevitably implicates questions of content intermediation in technology contexts, as well as the role of “expert” knowledge, professional licensing/credentialing, and professional liability.

Claudia Haupt in Licensing Knowledge asks us to consider “whether expert knowledge is still relevant in the information age.” Answering in the affirmative, Haupt’s article offers an injection of helpful intellectual rigor into discussions of knowledge construction, expertise, and the First Amendment. Haupt engages head-on the question of the Yelpification of expertise and knowledge (and its corresponding quality control challenges) as she takes us on a thought-provoking, interdisciplinary romp into the complex issues of “expert” speech and its intersection with personalization, professional licensing, and liability. As the article explains, “[s]cholars of the legal profession have asserted that ‘[t]he Internet has provided consumers with increasing access to information about the law and to information about the quality of services provided.’” (P. 522.) Yet, the ability to judge the quality of this information presents challenges particularly because of the rise of the lay “Internet expert.” These information asymmetries impact information accuracy and warrant consideration. Continue reading "Democratized Content and Its Discontents"

The Public Voice of Contract Law

David A. Hoffman & Erik Lampmann, Hushing Contracts, __ Wash. U. Law Rev. __ (forthcoming), available at SSRN.

Contracts should not be confused with contract law: contracts are private tools, but contract law is public. This distinction is particularly evident when the legal system provides enforcement services to parties who cannot work out their relationship without seeking state help. What, then, is this legal system supposed to do when asked to enforce a private contract that threatens to harm the public? While this question is centuries old, it has re-surfaced in recent years with unusual urgency. The contemporary rise of the issue may be linked to peak levels of inequality: in their carefully drafted contracts, stronger parties use their power not only at the expense of their counter-parties, but many times also in ways that negatively impact the wellbeing of third parties and the fundamental values that support our social existence.

In Hushing Contracts, David Hoffman and Eric Lampmann provide an important case study of this problem by closely examining the practice of using non-disclosure agreements in the context of sexual misconduct in a deliberate effort to conceal sexual misbehaviors. To elicit our most intuitive ability to recognize the predicament, the authors powerfully open with a reminder of the USA Gymnastics sexual abuse scandal. They invite us to recall the “national furor” that followed the revelation that USA Gymnastics used a contract to buy the silence of McKayla Maroney, a gold-medal winning American gymnast, in an effort to hide the sexual scandal from the public eye. Such national furor in and of itself evidences a core idea of the article: that private contracts have the potential to infringe upon matters the public strongly and justifiably cares about. Continue reading "The Public Voice of Contract Law"

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