Digital Commons Network^™

Medical Authority And The Right To Life, B. Jessie Hill

Faculty Publications

This essay briefly explores this relationship between the understandings—existing and potential—of the right to “life” and the role of medical authority in constitutional abortion rights litigation. It proceeds as follows. Part I describes the dichotomy between two different understandings of “life” in U.S. legal discourse, with a particular focus on cases dealing with the so-called “right to die.” Part II then explains why this dichotomy is relevant in the post-Dobbs abortion rights context, as it holds the promise of an alternate path to protection for abortion rights at the federal and state levels. Part II also discusses how and why …

Religious Nondelegation, B. Jessie Hill

Faculty Publications

The problem of religious exemptions has given rise to a rich body of scholarly literature, as well as a flood of litigation. One recent set of cases involved challenges to the Affordable Care Act’s (ACA) health care mandates—Section 1557 and the contraceptive mandate—and their religious exemptions. Some scholars have argued that religious exemptions violate the Establishment Clause when they confer a benefit on religious individuals, the costs of which are largely borne by those who do not share the religious individuals’ beliefs—a notion that is sometimes expressed in terms of “third-party harms.” The third-party harms approach to Establishment Clause violations …

The Appellate Judge As The Thirteenth Juror: Combating Implicit Bias In Criminal Convictions, Andrew S. Pollis

Faculty Publications

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias.

Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency of …

Uprooting Roe, B. Jessie Hill, Mae Kuykendall

Faculty Publications

The U.S. Supreme Court is likely poised to overturn Roe v. Wade in a matter of months. Yet, the roots of Roe run both wide and deep, and to uproot Roe would be to uproot the Constitution’s promise of gender equality in a radical way. Just as the Supreme Court’s jurisprudence of reproductive liberty freed people with reproductive capacity from having their destinies and status tied to their biology, an uprooting of Roe and its companion principles will restore the iron rules of gender difference and return women to their common-law status as lacking self-ownership and equal citizenship.

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, Raymond Shih Ray Ku

Faculty Publications

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as …

The Geography Of Abortion Rights, B. Jessie Hill

Faculty Publications

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion …

No More Old Boys’ Club: Institutional Investors’ Fiduciary Duty To Advance Board Gender Diversify, Anat Alon-Beck, Michal Agmon-Gonnen, Darren Rosenblum

Faculty Publications

As the benefits of gender equality for governance become more apparent, boardroom diversity initiatives abound. At the same time, institutional investors play an increasingly central role in the corporate world. This Article takes a novel approach to achieve this necessary change. Institutional investors already oversee firm leadership quite closely. This Article suggests that institutional investors hold a fiduciary duty to ensure there is gender diversity in leadership. As objections to state mandates persist, institutional investors can bring the benefits of private ordering to play a central role in ensuring equality.

Institutional investors play a dominant role over firms as principal …

Alternative Venture Capital: The New Unicorn Investors, Anat Alon-Beck

Faculty Publications

No abstract provided.

Essentially Elective: The Law And Ideology Of Restricting Abortion During The Covid-19 Pandemic, B. Jessie Hill

Faculty Publications

During the COVID-19 pandemic, several states adopted orders temporarily suspending elective surgeries and procedures. A subset of those states moved to limit abortions under those orders, provoking emergency litigation to keep abortion clinics open and functioning. No similar lawsuits have been necessary to protect access to other time-sensitive medical procedures. So why was abortion singled out for disparate treatment?

This Essay provides an overview of the litigation that ensued in the wake of some states’ attempts to limit abortion access under the authority of executive orders banning non-essential or elective procedures. It argues that abortion was singled out in two …

The Deliberative Privacy Principle, B. Jessie Hill

Faculty Publications

In this article, I propose that there is a deep connection among at least three seemingly disparate types of constitutional rights claims. Those three rights claims are the right to make the abortion decision for any reason one chooses; the right against compelled ideological speech; and the right of religious institutions to freely hire and fire their ministers (also known as the “ministerial exception”). In particular, there is a thread that unites all of these types of claims. That unifying thread is the concept of deliberative privacy. The connection among these rights claims has not been previously made explicit by …

Healing The Healers: Legal Remedies For Physician Burnout, Sharona Hoffman

Faculty Publications

A career as a doctor was long considered to be among the best professional paths that one could pursue. But medicine may no longer be the sought-after career that it once was. All too often, doctors, struggling with the demands of electronic health record systems and a myriad of administrative and regulatory responsibilities, find that they fail to derive much joy from their work and become victims of burnout. Physician burnout is an acute concern in the medical community, with over half of doctors reporting that they suffer from it. Physician burnout is a public health threat. Doctors who are …

What Genetic Testing Teaches About Long-Term Predictive Health Analytics Regulation, Sharona Hoffman

Faculty Publications

The ever-growing phenomenon of predictive health analytics is generating significant excitement, hope for improved health outcomes, and potential for new revenues. Researchers are developing algorithms to predict suicide, heart disease, stroke, diabetes, cognitive decline, future opioid abuse, and other ailments. The researchers include not only medical experts, but also commercial enterprises such as Facebook and LexisNexis, who may profit from the work considerably. This Article focuses on long-term disease predictions (predictions regarding future illnesses), which have received surprisingly little attention in the legal and ethical literature. It compares the robust academic and policy debates and legal interventions that followed the …

Quieting The Court: Lessons From The Muslim-Ban Case, Avidan Cover

Faculty Publications

The Supreme Court’s Muslim-ban decision in Trump v. Hawaii and the confirmation of Brett Kavanaugh to the Supreme Court call into question the civil rights litigation enterprise insofar as it challenges U.S. government’s national security and immigration policies. Litigants and advocacy organizations should employ an array of strategies and tactics to avoid the Court’s rulings that almost uniformly defer to, and thus validate, the government’s national security and immigration practices.

This article maintains that The Muslim-Ban Case was a predictable outgrowth of the Supreme Court’s national security-immigration jurisprudence that champions executive power at the expense of marginalized groups, in particular …

Clown Eggs, David Fagundes, Aaron K. Perzanowski

Faculty Publications

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its sur- rounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller …

Time Is Not On Our Side: Why Specious Claims Of Collective Bargaining Rights Should Not Be Allowed To Delay Police Reform Efforts, Ayesha Bell Hardaway

Faculty Publications

Many view the passage of the Violent Crime Control and Law Enforcement Act of 1994 as the best chance for police departments to make meaningful and lasting improvements. That legislation provides the federal government with the authority to investigate and sue local law enforcement agencies for engaging in a pattern or practice of policing that violates the rights of individuals. However, police unions have attempted to intervene in structural reform litigation designed to remedy unconstitutional policing practices. Those attempts have largely been based on employment rights conferred through collective bargaining laws and similar employment protections. The unions argue that the …

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Faculty Publications

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Big Data Analytics: What Can Go Wrong, Sharona Hoffman

Faculty Publications

It is not uncommon to read that long-held beliefs about medical treatments have been dislodged by new studies. For example, there is now doubt as to whether women should undergo annual mammograms, previously a cornerstone of cancer screening. Hormone replacement therapy for menopausal women, once considered highly suspect in light of worrisome research findings, is now being reconsidered as a beneficial therapy. These reversals trouble and confuse many Americans.

This Article explores why medical research findings can be erroneous and what can go wrong in the process of designing and conducting research studies. It provides readers with essential analytical tools …

Sex, Lies, And Ultrasound, B. Jessie Hill

Faculty Publications

State-mandated falsehoods are rampant in the context of abortion regulation. State legislatures have required doctors, before performing abortions, to provide scientifically unsupported information to women, such as that having an abortion increases the risk of breast cancer, or that it has negative mental health effects. Given the lack of evidence to sustain these sorts of claims, it seems reasonable to refer to such statements as government-mandated lies. However, this article argues that government mandated lies in the abortion context are unique in several ways that make them unlikely to be found unconstitutional, despite the fact that they obviously hinder patients’ …

Model Rule 8.4(G): Blatantly Unconstitutional And Blatantly Political, George W. Dent

Faculty Publications

In 2016 the American Bar Association adopted a new Rule 8.4(g) in its Model Rules of Professional Conduct. The rule provides, inter alia, that a lawyer may not “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of” several listed factors “in conduct related to the practice of law.” Comment 3 to the new rule provides that “discrimination” in the rule “includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”

The new rule effects several major changes. It extends its prohibition to behavior that a lawyer …

Kingdom Without End? The Inevitable Expansion Of Religious Sovereignty Claims, B. Jessie Hill

Faculty Publications

In a society that is increasingly polarized on the basis of religion and politics, there is perhaps no greater manifestation of that polarization than the claim to a realm entirely separate from, and independent of, the sovereignty of the civil state. Claims of religious institutions seeking autonomy with respect to their internal affairs sometimes include such sovereignty claims. Though institutional autonomy for religious organizations may be intended as a way of protecting civil rights, it also entails difficulties that are not easily resolved — not least among them their natural and nearly inevitable tendency to expand. This Essay considers the …

Big Data And The Americans With Disabilities Act: Amending The Law To Cover Discrimination Based On Data-Driven Predictions Of Future Illnesses, Sharona Hoffman

Faculty Publications

While big data holds great promise to improve the human condition, it also creates new and previously unimaginable opportunities for discrimination. Employers, financial institutions, marketers, educational institutions, and others can now easily obtain a wealth of big data about individuals’ health status and use it to make adverse decisions relating to data subjects.

The Americans with Disabilities Act (ADA) is a federal law that prohibits employers and other public and private entities from discriminating against individuals because of their disabilities. This chapter argues that in the era of big data, the ADA does not go far enough. While the ADA …

Exploitation In Medical Research: The Enduring Legacy Of The Tuskegee Syphilis Study, Ruqaiijah Yearby

Faculty Publications

No abstract provided.

The First Amendment And The Politics Of Reproductive Health Care, Jessie Hill

Faculty Publications

More than forty years after Roe v. Wade and more than fifty years after Griswold v. Connecticut, nearly every aspect of reproductive rights remains intensely disputed. Courts continue to struggle with the scope of the constitutional right to abortion. Employers seek exemptions from generally applicable requirements to provide insurance coverage for contraception, re-opening questions about women’s need for contraception that once seemed well settled. Indeed, the very nature of abortion and contraception is contested: some consider them to be essential health care, whereas others consider them controversial moral choices.

Drawing on recent controversies at the intersection of reproductive rights and …

Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill

Faculty Publications

In "Ties That Bind? The Questionable Consent Justification for Hosanna-Tabor," Professor Jessie Hill responds to Professor Christopher Lund's article "Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor," which was recently published in the Northwestern University Law Review. Admiring Lund's effort to weave together a comprehensive understanding of when and to what extent government can regulate religious entities with public laws, Hill nonetheless finds Lund's consent-oriented approach troubling. Hill argues that Lund does not adequately justify religious organizations' assertions of sovereignty over members who seek the protection of public laws. Addressing Lund's argument that believers can always avoid religious authority …

Constituting Children's Bodily Integrity, Jessie Hill

Faculty Publications

Children have constitutional rights to bodily integrity. When children are abused by state actors, courts do not hesitate to vindicate those rights. Moreover, in at least some cases, children’s bodily integrity rights protect them within the family, giving them the right to avoid unwanted physical intrusions regardless of their parents’ wishes. Nonetheless, the scope of this right of children vis-à-vis their parents unclear; the extent to which it applies beyond the narrow context of abortion and contraception has been almost entirely unexplored and untheorized. This Article is the first in the legal literature to analyze the constitutional right of minors …

Modernizing The Emergency Medical Treatment & Labor Act To Harmonize With The Affordable Care Act To Improve Equality, Quality And Cost Of Emergency Care, Katharine A. Van Tassel

Faculty Publications

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal statute passed almost 30 years ago which was designed to ensure equal access to emergency treatment and to halt the practice of “patient dumping.” Patient dumping is a situation where some patients—typically uninsured, disabled, and minority individuals—receive inferior emergency medical care or are denied emergency medical treatment altogether. The goal of EMTALA is to ensure that everyone coming to the emergency room will receive equal care.

Unfortunately, despite EMTALA, the practice of patient dumping has continued to this day. The most recent case in the news is the …

Citizen Science: The Law And Ethics Of Public Access To Medical Big Data, Sharona Hoffman

Faculty Publications

Patient-related medical information is becoming increasingly available on the Internet, spurred by government open data policies and private sector data sharing initiatives. Websites such as HealthData.gov, GenBank, and PatientsLikeMe allow members of the public to access a wealth of health information. As the medical information terrain quickly changes, the legal system must not lag behind. This Article provides a base on which to build a coherent data policy. It canvasses emergent data troves and wrestles with their legal and ethical ramifications.

Publicly accessible medical data have the potential to yield numerous benefits, including scientific discoveries, cost savings, the development of …

The Three Waves Of Married Women's Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joseph A. Custer

Faculty Publications

This paper concentrates on three states that enacted married women's property acts during the nineteenth century: Mississippi, New York, and Oregon. Each state, starting with Mississippi, enacted acts that reflect a different wave. While Chused's indexing and classification schema have been groundbreaking and extremely helpful in providing order and a basic understanding of what types of married women's property acts were passed and when in the nineteenth century, in my opinion he did not clearly provide any underlying explanation or "why" for the passage of the acts.

This is not taking anything away from Chusad's substantial contribution, but does present …

The Conflict Of Visions In Nfib V. Sebelius, Jonathan H. Adler

Faculty Publications

In 2010, few anticipated the fate of health care reform would rest with the Supreme Court. Yet National Federation of Independent Business v. Sebelius emerged as a watershed case that could remake the constitutional landscape. NFIB presented a conflict between two constitutional visions of federal power, and the role of the courts in policing such limits – an unconstrained vision, under which limits on federal power are enforced primarily through the political process, and a constrained vision, under which constitutional limits on federal power are enforced by the courts. The contrasting views of the constitutionality of the individual mandate and …

Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960s And 1970s, Joseph A. Custer

Faculty Publications

After a detailed look at the four decision-making models, this Article discusses the aforementioned Ideological Voting Article." This Article then introduces a study of judicial decisions rendered in school desegregation cases in the 1960s and 1970s-a topic suggested in Ideological Voting for further research on judicial decision-making. The school desegregation study conducted for this Article examines Federal Circuit Court decisions starting in 1960 and running through 1973. This Article then discusses differences between outcomes in Ideological Voting and outcomes in the school desegregation decision-making study, in. which each of the four decision-making models are applied.

The conclusion of this Article …