Faculty Bibliography
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This Viewpoint explores the various types of state laws establishing fetal personhood and the potential implications of these laws on health care, patients, and clinicians.
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Vicki C. Jackson, Exclusionary Originalism as Anti-Constitutionalist: Dobbs and Bruen as Threats to Constitutionalism, 18 Harv. L. & Pol'y Rev. 221 (2024).
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Medical devices diagnose disease, prolong life, and improve health. But when defective, they can injure, disable, and kill. To successfully sue manufacturers for injuries caused by medical devices, patients must overcome the defense that federal law preempts, or displaces, state law claims. The Supreme Court has provided a framework for answering this question with respect to most devices. However, it has never confronted how it would apply the framework to an innovative but growing class of devices—de novo devices—that may incorporate novel technologies like artificial intelligence and machine learning. This Essay tries to answer this question as a predictive and normative matter. From a predictive perspective, the Essay argues that the Court’s increasingly textualist orientation suggests it will reject preemption of claims against manufacturers of de novo devices, though the result is not certain. From a normative perspective, the Essay argues that allowing claims against de novo device manufacturers forces risk internalization, provides a regulatory failsafe for innovative technology, and preserves innovation without sacrificing patient health.
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Madiba K. Dennie argues that “originalism deliberately entombs historically marginalized groups’ legal claims to liberation.”
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The federal judge’s ruling in the Trump document case is a travesty.
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The anxiety about distinguishing a President from a king, which framed this Court term, is inextricably intertwined with the end-of-democracy theme of the 2024 Presidential race.
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Court’s troubling rulings on presidential immunity and regulatory power make it clear that change is an ethical essential.
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If Joe Biden doesn’t willingly resign, there’s another solution, which would allow Democrats to unite around a new incumbent.
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We show that intergenerational mobility changed rapidly by race and class in recent decades and use these trends to study the causal mechanisms underlying changes in economic mobility. For white children in the U.S. born between 1978 and 1992, earnings increased for children from high-income families but decreased for children from low-income families, increasing earnings gaps by parental income (“class”) by 30%. Earnings increased for Black children at all parental income levels, reducing white- Black earnings gaps for children from low-income families by 30%. Class gaps grew and race gaps shrank similarly for non-monetary outcomes such as educational attainment, standardized test scores, and mortality rates. Using a quasi-experimental design, we show that the divergent trends in economic mobility were caused by differential changes in childhood environments, as proxied by parental employment rates, within local communities defined by race, class, and childhood county. Outcomes improve across birth cohorts for children who grow up in communities with increasing parental employment rates, with larger effects for children who move to such communities at younger ages. Children’s outcomes are most strongly related to the parental employment rates of peers they are more likely to interact with, such as those in their own birth cohort, suggesting that the relationship between children’s outcomes and parental employment rates is mediated by social interaction. Our findings imply that community-level changes in one generation can propagate to the next generation and thereby generate rapid changes in economic mobility.
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An analysis of two different knowledge institutions that serve democracies.
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The Research Handbook on Health, AI and the Law explores the use of AI in healthcare, identifying the important laws and ethical issues that arise from its use. Adopting an international approach, it analyses the varying responses of multiple jurisdictions to the use of AI and examines the influence of major religious and secular ethical traditions.
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Efforts to prosecute them constitute election interference.
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This book is a primer on corporate law for law students and anyone else desiring a first course in corporate law. The book provides a self-contained, accessible presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors and other stakeholders, major transactions (M&A), and parallels with alternative entities including partnerships; optional background chapters cover the investor eco-system, corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated yet short and simple enough for a quick read.
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Kicking the emergency abortion issue down the road as a national election looms is convenient for the court’s reactionary majority.
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Congressional hearings and public reports have drawn attention to problems afflicting Medicare Advantage (MA), the privatized version of Medicare. Private plans became a staple of Medicare through the passage of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). Congress passed this law during a furor of privatization, when think tanks and powerful financial interests emphasized the power of corporations’ profit incentive to improve the efficiency and quality of social enterprise. Yet the surging criticism of MA suggests a misalignment between the financial interest of some MA plans and the well-being of their patient populations. The criticisms range from deceptive marketing, ghost networks, and patient cherry-picking to unethical prior authorization denials and defrauding the government. In total, MA plans cost the federal government 22% more per patient than if these patients in question were enrolled in traditional Medicare. Moreover, it is not clear that this additional funding is producing proportional benefits. These developments raise questions about the presence of a profit incentive in Medicare, and perhaps health care more broadly.
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Rep. Marjorie Taylor Greene might like it, but no one else should take this idea as anything other than what it appears to be — a political ploy with serious negative ripple effects.
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In this Viewpoint, the authors refute recent suggestions that the US Food and Drug Administration (FDA) is not accountable for its decisions, pointing out the legal, legislative, and executive checks and balances on the agency.
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This is about a lot more than one university's disciplinary action.
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Women’s Health Research, barely 40-year-old in the United States has recently received an all-important boost from First Lady Jill Biden. The $100 million in question are bound to make a meaningful difference in this all-important arena. It was the view of the White House that “our nation must fundamentally change how we approach and fund women’s health research.” The White House expressed its hope that “congressional leaders, the private sector, research institutions, and philanthropy” will answer the call to “improve the health and lives of women throughout the nation.”
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Importance: As government agencies around the globe contemplate approval of the first psychedelic medicines, many questions remain about their ethical integration into mainstream medical practice. Objective: To identify key ethics and policy issues related to the eventual integration of psychedelic therapies into clinical practice. Evidence Review: From June 9 to 12, 2023, 27 individuals representing the perspectives of clinicians, researchers, Indigenous groups, industry, philanthropy, veterans, retreat facilitators, training programs, and bioethicists convened at the Banbury Center at Cold Spring Harbor Laboratory. Prior to the meeting, attendees submitted key ethics and policy issues for psychedelic medicine. Responses were categorized into 6 broad topics: research ethics issues; managing expectations and informed consent; therapeutic ethics; training, education, and licensure of practitioners; equity and access; and appropriate role of gatekeeping. Attendees with relevant expertise presented on each topic, followed by group discussion. Meeting organizers (A.L.M., I.G.C., D.S.) drafted a summary of the discussion and recommendations, noting points of consensus and disagreement, which were discussed and revised as a group. Findings: This consensus statement reports 20 points of consensus across 5 ethical issues (reparations and reciprocity, equity, and respect; informed consent; professional boundaries and physical touch; personal experience; and gatekeeping), with corresponding relevant actors who will be responsible for implementation. Areas for further research and deliberation are also identified. Conclusions and Relevance: This consensus statement focuses on the future of government-approved medical use of psychedelic medicines in the US and abroad. This is an incredibly exciting and hopeful moment, but it is critical that policymakers take seriously the challenges ahead.
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For years, universities have been less inclined to protect speech and quicker to sanction it. After this spring’s protests, it will be difficult to turn back.
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The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights. This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written. To those who created the Fourteenth Amendment, general law supplied the fundamental rights that Section One secured. On this view, while Section One identified the citizens of the United States, it did not confer new rights of citizenship. Instead, it secured preexisting rights—rights already thought to circumscribe state power—by partially shifting their enforcement and protection from state courts and legislatures to federal courts and Congress. This general-law understanding makes more sense of the historical record than existing theories, which consider the Fourteenth Amendment solely in terms of federal or state law. And it has significant implications for modern Fourteenth Amendment doctrine, from state action to civic equality to “incorporation” to “substantive due process.”
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Nuisance is once again a hot topic in legal practice and scholarship. Public nuisance law is at the center of efforts to hold product manufacturers, energy companies, and internet platforms liable for billions in losses. Scholars have in turn offered competing accounts of the legitimacy and scope of this form of liability. Meanwhile, private nuisance has been the subject of renewed academic attention, including the issuance of new Restatement provisions, that aim to make sense of its distinctive features. Unfortunately, to date, these two lines of inquiry have mostly been pursued in isolation, a pattern that reflects the prevailing wisdom (famously articulated by William Prosser and others) that the two nuisances share nothing beyond a common name. To the contrary, this Article maintains that the key to practical and theoretical progress in this complex area of law is to appreciate that the two nuisances are variants of the same general concept. As variants, they do indeed differ: a private nuisance is a wrong involving the violation of another’s right to use and enjoy their property, whereas public nuisance in the first instance does not turn on the violation of private property rights. And yet both nuisances involve wrongful interferences with others’ access to, or use of, physical spaces or resources. By attending to and appreciating this common core, lawyers, judges, and scholars will be better positioned to develop nuisance law in a consistent and principled manner.
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Yabancı hukuka yargısal atıf yapılmasına ilişkin tartışmalarda hâkimler değerleri tartışmaktadır. Ancak çoğu zaman tartıştıkları değerleri kabul etmemektedirler veya çoğunluk ve muhalif görüşlerde neden bir değeri diğerine tercih ettiklerine dair özel gerekçeler sunmamaktadırlar, bunun yerine genel bir iddiada bulunmak için olumsuz yabancı hukuk modellerini benimsemeyi tercih ediyorlar. Bu fenomenin bir örneği, keyfiliğe atıfta bulunmak için "kadijustiz" kelimesinin (Max Weber tarafından ortaya atılan ve Yargıç Felix Frankfurter tarafından 1949'da alınan bir kararla yaygınlaştırılan bir terim) Amerikan yargısal atfıdır. Ancak bu uygulama iki nedenden dolayı yanlıştır. Birincisi, İslam hukuk tarihçilerinin Orta Çağ'dan erken modern dönemlere kadar Memlük, Osmanlı ve diğer mahkemelerdeki İslami yargı prosedürlerini ayrıntılı olarak incelerken uzun zamandır işaret ettiği gibi, bu doğru değildir. İkincisi, kadijustiz'e yargısal atıf, tartışmalı yargısal karar alma süreçlerinde belirli değerlerin diğerlerine göre benimsenmesinin nedenlerini gizlemekte ve böylece, buna atıf yapan hakimlerin argümanlarını genel olarak zayıflatmaktadır.
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In a Time interview, Trump tells us how law, order and freedom are at stake in November.
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The Constitution gives the president no “duties” over presidential elections; his actions are therefore personal, and not immune.
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We ask whether increased public scrutiny leads to the more effective use of predictive algorithms. We focus on the context of bail, where judges face heightened public scrutiny during competitive partisan elections. We find that judges up for reelection are much more likely to follow the algorithmic recommendation to detain high-risk defendants just before an election. However, release decisions return to normal shortly after the election, and there is little change in pretrial misconduct rates, indicating that heightened public scrutiny, at least through competitive partisan elections, will not lead to the more effective use of predictive algorithms in bail.
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We investigate whether removing a previously-obtained criminal record improves employment outcomes. We estimate the causal impact of criminal record remediation laws that have been widely enacted with the goal of improving employment opportunities for millions of individuals with records. We find consistent evidence that removing an existing record does not improve labor market outcomes, on average. A notable exception is participation in gig work through online platforms, which often screen workers based on their records but not their employment histories. The evidence is consistent with records initially scarring labor market trajectories in a way that is difficult to undo later.