Monthly Archives: July 2020
- Samuel R. Bagenstos, May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing, 130 Yale L. J. Forum __ (forthcoming, 2020), available at SSRN.
- Deborah Hellman & Kate Nicholson, Rationing and Disability in a State of Crisis (Apr. 16, 2020), available at SSRN.
With the COVID-19 pandemic wreaking havoc in health care systems around the world, many jurisdictions have recently drafted or dusted off old clinical care triage protocols to facilitate decision-making when surges in infection rates overwhelm hospitals’ Intensive Care Units (ICUs). Not surprisingly, most of these policies reflect a utilitarian approach. Law and ethics policies generally endorse the notion that a pandemic or other large-scale threat to society requires efficient action by governments, which may involve a curtailing of individual rights. A growing chorus of academic commentators and human rights organizations have voiced concern that the focus on ‘saving the most lives’ embedded in triage policies, and particularly how these policies hope to achieve this, clashes with discrimination law, and particularly the rights of people with disabilities. Of a near-tsunami of blogs, op-eds, and commentaries in the legal, bioethics, and medical literature, forthcoming law articles by Samuel R. Bagenstos, and Deborah Hellman and Kate Nicholson stand out for how they discuss what the demands of equity imposed by discrimination law require, and how they each give us some idea of what accommodation in clinical triage protocol policies could look like.
Triage protocols are intended to solve the clash of commitments among physicians, when they are no longer able to give all patients the care they would normally feel duty-bound to provide. They introduce selection criteria for access to care (particularly ventilators, which I will focus on later), explicitly based on concepts of utility, fairness, proportionality, and reciprocity; and also decision-making procedures built around triage committees. Triage protocols deal with life and death decisions, or a least with who will receive an albeit limited chance of survival, since survival rates of those put on a ventilator for COVID19 appear troublingly low. The disability community has raised particular concerns about those protocols that mention specific disabilities as disqualifying conditions. These concerns flow from a historical experience with deprioritization and broad problems of equitable access to health care; concerns that have been heightened by the disproportionate impact of the pandemic. But even protocols claiming to be purely based on clinical prognoses and prediction of mortality have come under scrutiny because of their disproportionate impact on people with disabilities and other disadvantaged groups. Continue reading "Addressing the Tension between Discrimination Law and Pandemic Clinical Triage Protocols"
Greer Donley, Parental Autonomy Over Prenatal End-of-Life Decisions
, __ Minn. L. Rev.
__ (forthcoming 2020), available at SSRN
In early 2019, controversy erupted when Virginia’s state legislature considered a bill that would loosen restrictions on abortion, including what are colloquially known as late-term abortions performed in the second and third trimester. Although such abortions are extremely rare – only 1.4 percent of abortions are performed from the twenty-first week of pregnancy and beyond, according to Planned Parenthood – people opposed to abortion used the discussion of late-term abortions to accuse the bill’s supporters of promoting infanticide. If it would be morally repugnant to, in President Trump’s words, “execute” a baby after birth, why is it not similarly repugnant to terminate a pregnancy past the point that most pregnancies are considered viable?
In her upcoming article Parental Autonomy over Prenatal End-of-Life Decisions, forthcoming in the Minnesota Law Review, Greer Donley turns this rhetorical question on its head. In many circumstances, parents have the right to decline medical care on behalf of their children. Faced with a catastrophic medical diagnosis and a plan of invasive, painful treatment with very limited chance of success, parents have the authority to make the unfathomably difficult decision to provide only palliative care and minimize their child’s suffering. Why, Donley asks, would we deny parents terminating a wanted pregnancy in the face of a devastating diagnosis the same authority? Continue reading "When Abortion is Parenting"
- Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, __ Nw. U. L. Rev. Online __ (forthcoming 2020), available at SSRN.
- Benjamin Levin, Criminal Law in Crisis, __ Colo. L. Rev. Forum __ (forthcoming 2020), available at SSRN.
The novel coronavirus and its attendant disease, COVID-19, have created a pandemic in 2020. Mass incarceration and the attendant expansion of the carceral state is an epidemic in the United States. The intersection of the pandemic and this epidemic is proving toxic. Prisons and jails are emerging as hot spots for infection across the country. Incarcerated persons, employees at jails and prisons, the family members of both, and those who come in contact with those family members are all affected by the crisis. Demands for change are growing. Like so many other facets of our daily lives, COVID-19 promises to leave its mark on the administration of criminal law. The only question remains – how?
Two new essays begin to grapple with that question. In her essay, Pretrial Detention in the Age of COVID-19, forthcoming in the Northwestern University Law Review Online, Jenny Carroll highlights how the pandemic exacerbates the threat of unnecessary incarceration and exposes an inaccurately narrow conception of “community” in relation to pretrial detainees in criminal administration. In his essay, Criminal Law in Crisis, forthcoming in the Colorado Law Review Forum, Benjamin Levin suggests that, through the prism of the pandemic, flaws of the ordinary administration of criminal law become visible and doubt creeps in as to whether those features make sense, or if they ever did. Because these essays together bring forward hopeful possibilities in this moment for criminal administration, each is a must-read piece for those concerned about mass incarceration, the pandemic, or both. Continue reading "COVID-19’s Effect on Criminal Administration in the Era of Mass Incarceration"
Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.
Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them. Continue reading "The Machinery of Justice"
Kenneth S. Abraham & G. Edward White, Conceptualizing Tort Law: The Continuous (and Continuing) Struggle
__ Maryland L. Rev.
__ (forthcoming 2020), available at SSRN
Like Gaul, tort law is divided into three parts: torts of intent, negligence, and strict liability. At least, that is what most torts professors teach and what many scholars, judges and practitioners suppose.
In an engaging, lively, and perceptive article, Professors Abraham and White remind us that this tripartite division is descriptively inadequate for characterizing the variety of individual torts recognized today. They further claim that this plethora of distinct torts is a disorganized, fragmented mess. They then surprise the reader with a provocative conclusion: tort law is incapable of principled organization. The authors provide solid evidence of their descriptive thesis. Their critiques of the inevitability of this unprincipled disorganization are more controversial, for reasons that I will later suggest. Continue reading "Is Tort Law Hopelessly Fragmented?"
What can Federal Indian Law offer public law as a whole? Supreme Court justices have famously dismissed Indian Law cases as “chickenshit” and “pee wee” cases, and scholars have worked for generations to justify the meager recognition of tribal sovereign interests within public law. Maggie Blackhawk’s wonderfully generative Federal Indian Law as Paradigm, however, convincingly argues that Indian law, far from an idiosyncratic backwater, is central to the history of public law in the United States and can provide valuable lessons for framing its future.
First, Blackhawk masterfully synthesizes the work of many scholars (including her own work on the Petitions Clause) to show the role federal Indian affairs has played in the history of government power. Indian affairs were central for the founding generation, figuring prominently in the debates over the Constitution and the early work of Congress and the Executive Branch. Concerns about foreign interference with tribal diplomacy, for example, inspired the first understanding that the Senate’s advice and consent role with respect to treaties included only approval after the fact rather than participation in negotiations. Continue reading "Re-Centering Federal Indian Law"
Yonathan A. Arbel, Payday, 96 Wash. U.L. Rev.
1 (forthcoming 2020), available at SSRN
The unfolding pandemic has been an incredible change agent. In business, it has upended the rhythms and routines of work and operations in pedestrian and profound ways. It has accelerated anticipated changes and forced unforeseen changes. It has pushed us to examine and re-examine what was normal and necessary in the old ways we work, in the old operations of our businesses.
In his forthcoming article, Payday, Professor Yonathan Arbel examines the old, longstanding business practice of payday. In particular, he looks into why so many workers only get paid on one day for their continuous daily labor despite numerous advances in financial technology. As he succinctly put it at the start of his article:
While trillions of dollars are exchanged in online transactions—safely, cheaply, and instantaneously—workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid. Continue reading "A New Payday(s)"
Theresa Arnold, Amanda Dixon, Madison Whalen, & Mitu Gulati, The Myth of Optimal Expectation Damages
, __ Marquette L. Rev. __ (forthcoming), available at SSRN
Everyone knows that the expectation measure is the standard, default measure of damages for a bargain contract, and for the last few decades most scholars have regarded the expectation measure as backed by weighty, straightforward justifications grounded on economic efficiency. But there are several reasons to doubt both of these general propositions, as the authors of The Myth of Optimal Expectation Damages nicely suggest and begin to demonstrate using empirical data from bond markets.
As doctrinal background, the expectation measure is not in fact as widely established as the default damages measure in contract law as many teachers of Contracts suppose. It’s true that it’s one standard measure, but the law uses other defaults in several important and often neglected contexts. For example, in many states, buyers of real estate don’t get expectation damages for breach by the seller unless the breach is in bad faith; instead, the buyer is often limited to reliance damages (and often quite a limited subset of reliance damages). Similarly, doctrines that are commonly regarded as non-remedial, like doctrines of mistake, increasingly lead to remedies other than expectation damages. Continue reading "A Crisis of Faith in (the Efficiency of) Expectation Damages"
Perhaps one of the biggest drawbacks in the current legal academic literature is its disconnect with the scientific community. Social science and scientific research have so much to offer the legal academy, but too often this wealth of valuable information goes overlooked and unnoticed. This information can be particularly instructive to workplace law, as scholars continue to explore the driving forces behind discriminatory bias, employer motivations and other related issues.
In her fascinating piece, Acting Differently: How Science on the Social Brain Can Inform Antidiscrimination Law, Professor Susan Carle (American University) helps bridge this gap between the legal workplace literature and the academic sciences. The article is the last in a wonderful trilogy Professor Carle has written on discrimination and human behavior. I highly recommend the other two articles as well, which are available here and here. Continue reading "Workplace Law, Social Neuroscience, and the Right to be Different"
What happens when Congress enacts a permanent commitment to pay for some ongoing activity, but then fails to appropriate the funds necessary to do so? Until recently, this phenomenon was almost unheard of. But contemporary examples abound. For example, Congress failed to fund different two different provisions of the Affordable Care Act that had committed the federal government to pay insurers through the “risk corridors” program and through “cost-sharing reductions”; failed to fund tribes who had elected under the Indian Self-Determination and Education Act to provide services that had previously been provided by the federal government; and failed to fund the Children’s Health Insurance Program, a complex cooperative federalism program that is deeply entrenched, albeit in different ways, in states’ health care coverage for children. These examples either reflect or generate inter-branch conflict, implicating the executive branch, and often courts, in what may at first glance seem to be simply an intra-legislative breakdown.
We need a vocabulary to identify and describe this phenomenon and a framework through which to understand and assess it. Matthew Lawrence’s new article Disappropriation does just that. Continue reading "When the Government Breaks Its Financial Promises"