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Full-Text Articles in Law

Aequitas: Seeking Equilibrium In Title Ix, Raymond Trent Cromartie Dec 2023

Aequitas: Seeking Equilibrium In Title Ix, Raymond Trent Cromartie

Sturm College of Law: Faculty Scholarship

Over the past two decades, the scope of Title IX has expanded drastically and now includes the investigation and adjudication of sexual misconduct cases through campus tribunals. Beginning in 2011, the Obama Administration, through a “Dear Colleague Letter” and subsequent guidance, initiated this process by establishing guidelines that required schools to develop and implement policies and procedures for the handling of sexual misconduct cases. Following the publication of the Obama-era guidance, schools scrambled to ensure compliance with the federal guidance, which led to a myriad of applications by universities. Unfortunately, the fallout from the 2011 guidance was widespread litigation initiated …


Defining Health Affordability, Govind C. Persad Nov 2023

Defining Health Affordability, Govind C. Persad

Sturm College of Law: Faculty Scholarship

Affordable health care, insurance, and prescription drugs are priorities for the public and for policymakers. Yet the lack of a consensus definition of health affordability is increasingly recognized as a roadblock to health reform efforts. This Article explains how and why American health law invokes health affordability and attempts, or fails, to define the concept. It then evaluates potential affordability definitions and proposes strategies for defining affordability more clearly and consistently in health law.

Part I examines the role health affordability plays in American health policy, in part by contrasting the United States’s health system with systems elsewhere. Part II …


The Shared Ethical Framework To Allocate Scarce Medical Resources: A Lesson From Covid-19, Ezekiel J. Emanuel, Govind C. Persad Jun 2023

The Shared Ethical Framework To Allocate Scarce Medical Resources: A Lesson From Covid-19, Ezekiel J. Emanuel, Govind C. Persad

Sturm College of Law: Faculty Scholarship

The COVID-19 pandemic has helped to clarify the fair and equitable allocation of scarce medical resources, both within and among countries. The ethical allocation of such resources entails a three-step process: (1) elucidating the fundamental ethical values for allocation, (2) using these values to delineate priority tiers for scarce resources, and (3) implementing the prioritisation to faithfully realise the fundamental values. Myriad reports and assessments have elucidated five core substantive values for ethical allocation: maximising benefits and minimising harms, mitigating unfair disadvantage, equal moral concern, reciprocity, and instrumental value. These values are universal. None of the values are sufficient alone, …


The Weaponization Of Attorney’S Fees In An Age Of Constitutional Warfare, Rebecca Aviel, Wiley Kersh May 2023

The Weaponization Of Attorney’S Fees In An Age Of Constitutional Warfare, Rebecca Aviel, Wiley Kersh

Sturm College of Law: Faculty Scholarship

If you want to win battles in the culture war, you enact legislation that regulates firearms, prohibits abortions, restricts discussion of critical race theory, or advances whatever other substantive policy preferences represent a victory for your side. But to win the war decisively with an incapacitating strike, you make it as difficult as possible for your adversaries to challenge those laws in court. Clever deployment of justiciability doctrines will help to insulate constitutionally questionable laws from judicial review, but some of the challenges you have sought to evade will manage to squeak through.

To fully disarm your opponents in an …


Grandma Got Arrested: Police, Excessive Force, And People With Dementia, Rashmi Goel Jan 2023

Grandma Got Arrested: Police, Excessive Force, And People With Dementia, Rashmi Goel

Sturm College of Law: Faculty Scholarship

Recent events have shone a light on the particular vulnerability of people with dementia to police violence. Police are arresting people with dementia and using excessive force to do it—drawing their firearms, deploying tasers, and breaking bones.

To date, little attention has been paid to the burgeoning number of people with dementia, one of society’s most vulnerable populations, and their experiences with the criminal justice system. This Article examines how dementia leads people to engage in activity that appears criminal (shoplifting (forgetting to pay), and trespass (wandering), for instance) and the disproportionate response of police. In several cases where people …


Did The Superbowl Ad Curse Heighten Defined Contribution Plan Fiduciary Duties?: Deciphering The Legal And Ethical Landscape Of Cryptocurrency Options In 401(K)S, Lauren K. Valastro Jan 2023

Did The Superbowl Ad Curse Heighten Defined Contribution Plan Fiduciary Duties?: Deciphering The Legal And Ethical Landscape Of Cryptocurrency Options In 401(K)S, Lauren K. Valastro

Sturm College of Law: Faculty Scholarship

Regulating cryptocurrency’s place in America’s most popular retirement savings vehicle generates thorny legal, ethical, and social justice dilemmas. Too little regulation could hurt those at highest risk of underfunded retirement. Too much could exacerbate existing racial, ethnic, and gender inequities.

Though recent regulatory efforts suggest 401(k) administrators violate their fiduciary duty of care by offering cryptocurrency investment options to plan participants, the established fiduciary regime protects 401(k) plan participants from cryptocurrency risk while respecting their savings preferences. Yet, the current framework falls short of ethically and equitably serving all plan participants, particularly members of underserved communities — a problem largely …


Considering Vaccination Status, Govind C. Persad Jan 2023

Considering Vaccination Status, Govind C. Persad

Sturm College of Law: Faculty Scholarship

"This Article examines whether policies—sometimes termed “vaccine mandates” or “vaccine requirements”— that consider vaccination status as a condition of employment, receipt of goods and services, or educational or other activity for participation are legally permitted, and whether such policies may even sometimes be legally required. It does so with particular reference to COVID-19 vaccines.

Part I explains the legality of private actors, such as employers or private universities, considering vaccination status, and concludes that such consideration is almost always legally permissible unless foreclosed by specific state legislation. Part II examines the consideration of vaccination status by state or federal policy. …


Fair Domestic Allocation Of Monkeypox Virus Countermeasures, Govind C. Persad, R. J. Leland, Trygve Ottersen, Henry S. Richardson, Carla Saenz, G. Owen Schaefer, Ezekiel J. Emanuel Jan 2023

Fair Domestic Allocation Of Monkeypox Virus Countermeasures, Govind C. Persad, R. J. Leland, Trygve Ottersen, Henry S. Richardson, Carla Saenz, G. Owen Schaefer, Ezekiel J. Emanuel

Sturm College of Law: Faculty Scholarship

Countermeasures for mpox (formerly known as monkeypox), primarily vaccines, have been in limited supply in many countries during outbreaks. Equitable allocation of scarce resources during public health emergencies is a complex challenge. Identifying the objectives and core values for the allocation of mpox countermeasures, using those values to provide guidance for priority groups and prioritisation tiers, and optimising allocation implementation are important. The fundamental values for the allocation of mpox countermeasures are: preventing death and illness; reducing the association between death or illness and unjust disparities; prioritising those who prevent harm or mitigate disparities; recognising contributions to combating an outbreak; …


Reserve System Design For Allocation Of Scarce Medical Resources In A Pandemic: Some Perspectives From The Field, Parag A. Pathak, Govind C. Persad, Tayfun Sönmez, M. Utku Unver Dec 2022

Reserve System Design For Allocation Of Scarce Medical Resources In A Pandemic: Some Perspectives From The Field, Parag A. Pathak, Govind C. Persad, Tayfun Sönmez, M. Utku Unver

Sturm College of Law: Faculty Scholarship

No abstract provided.


A Multicenter Weighted Lottery To Equitably Allocate Scarce Covid-19 Therapeutics, Douglas B. White, Erin K. Mccreary, Chung-Chou H. Chang, Mark Schmidhoffer, J. Ryan Bariola, Naudia N. Jonassaint, Govind C. Persad, Robert D. Truog, Parag A. Pathak, Tayfun Sönmez, M. Utku Unver Aug 2022

A Multicenter Weighted Lottery To Equitably Allocate Scarce Covid-19 Therapeutics, Douglas B. White, Erin K. Mccreary, Chung-Chou H. Chang, Mark Schmidhoffer, J. Ryan Bariola, Naudia N. Jonassaint, Govind C. Persad, Robert D. Truog, Parag A. Pathak, Tayfun Sönmez, M. Utku Unver

Sturm College of Law: Faculty Scholarship

Shortages of new therapeutics to treat coronavirus disease (COVID-19) have forced clinicians, public health officials, and health systems to grapple with difficult questions about how to fairly allocate potentially life-saving treatments when there are not enough for all patients in need. Shortages have occurred with remdesivir, tocilizumab, monoclonal antibodies, and the oralantiviral Paxlovid.

Ensuring equitable allocation is especially important in light of the disproportionate burden experienced during the COVID-19 pandemic by disadvantaged groups, including Black, Hispanic/Latino and Indigenous communities, individuals with certain disabilities, and low-income persons. However, many health systems have resorted to first-come, first-served approaches to allocation, which tend …


Reforming Age Cutoffs, Govind C. Persad Jul 2022

Reforming Age Cutoffs, Govind C. Persad

Sturm College of Law: Faculty Scholarship

This Article examines the use of minimum age cutoffs to define eligibility for social insurance, public benefits, and other governmental programs. These cutoffs are frequently used but rarely examined in detail. In Part I, I examine and catalogue policies that employ minimum age cutoffs. These include not only Medicare and Social Security but also other policies such as access to pensions and retirement benefits, eligibility for favorable tax treatment, and eligibility for discounts on governmentally provided goods and services. In Part II, I examine different rationales underlying eligibility and discuss the imperfect fit between these rationales and the use of …


Fair Allocation Of Scarce Therapies For Coronavirus Disease 2019 (Covid-19), Govind C. Persad, Monica E. Peek, Seema K. Shah Jul 2022

Fair Allocation Of Scarce Therapies For Coronavirus Disease 2019 (Covid-19), Govind C. Persad, Monica E. Peek, Seema K. Shah

Sturm College of Law: Faculty Scholarship

The US Food and Drug Administration (FDA) has issued emergency use authorizations (EUAs) for monoclonal antibodies (mAbs) for nonhospitalized patients with mild or moderate coronavirus disease 2019 (COVID-19) disease and for individuals exposed to COVID-19 as postexposure prophylaxis. EUAs for oral antiviral drugs have also been issued. Due to increased demand because of the Delta variant, the federal government resumed control over the supply and asked states to ration doses. As future variants (e.g., the Omicron variant) emerge, further rationing may be required. We identify relevant ethical principles (i.e., benefiting people and preventing harm, equal concern, and mitigating health inequities) …


Covid-19 Vaccine Refusal And Fair Allocation Of Scarce Medical Resources, Govind Persad, Emily A. Largent Apr 2022

Covid-19 Vaccine Refusal And Fair Allocation Of Scarce Medical Resources, Govind Persad, Emily A. Largent

Sturm College of Law: Faculty Scholarship

When hospitals face surges of patients with COVID-19, fair allocation of scarce medical resources remains a challenge. Scarcity has at times encompassed not only hospital and intensive care unit beds—often reflecting staffing shortages—but also therapies and intensive treatments. Safe, highly effective COVID-19 vaccines have been free and widely available since mid-2021, yet many Americans remain unvaccinated by choice. Should their decision to forgo vaccination be considered when allocating scarce resources? Some have suggested it should,while others disagree. We offer a framework for evaluating when it is ethical and briefly discuss its legality in American law.


The Broken Fourth Amendment Oath, Laurent Sacharoff Mar 2022

The Broken Fourth Amendment Oath, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

The Fourth Amendment requires that warrants be supported by “Oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant merely by repeating the account of an informant. This Article shows, however, that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the oath, by its very nature, required a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones …


Time Of Renewables, K.K. Duvivier, Haley Balentine Jan 2022

Time Of Renewables, K.K. Duvivier, Haley Balentine

Sturm College of Law: Faculty Scholarship

100% renewable energy is increasingly becoming a goal in the United States, and it makes sense for both climate and cost reasons. First, generating electricity from renewable resources, instead of fossil fuels, avoids climate-changing carbon and methane emissions. Second, solar and wind power involve technologies that now represent the lowest cost options for new electricity generation in many parts of the country. Transitioning from a 19th century fossil-fuel grid to 100% renewables involves technical and economic challenges, but some of the greatest challenges are due to policy. In 2005, Congress enacted policies to encourage the more efficient use of electricity …


Fair Access To Scarce Medical Capacity For Non-Covid-19 Patients: A Role For Reserves, Govind C. Persad, Parag A. Pathak, Tayfun Sönmez, M. Utku Unver Jan 2022

Fair Access To Scarce Medical Capacity For Non-Covid-19 Patients: A Role For Reserves, Govind C. Persad, Parag A. Pathak, Tayfun Sönmez, M. Utku Unver

Sturm College of Law: Faculty Scholarship

As hospitals in the US and elsewhere fill again with patients with covid-19, discussions about how to fairly allocate scarce medical resources have come to the fore once again. One frequently voiced concern is that non-covid-19 patients with urgent health needs are facing indefinitely postponed surgeries, long-distance hospital transfers, or even are unable to access medical treatment. In our view, a reserve or categorised priority system could help. It could be used to fairly distribute scarce medical capacity—such as staffing, physical space, and medical treatments—between covid-19 and non-covid-19 patients, just as it has been used or proposed to allocate covid-19 …


Race-Specific, State-Specific Covid-19 Vaccination Rates Adjusted For Age, Elizabeth Wrigley-Field, Kaitlyn M. Berry, Govind C. Persad Jan 2022

Race-Specific, State-Specific Covid-19 Vaccination Rates Adjusted For Age, Elizabeth Wrigley-Field, Kaitlyn M. Berry, Govind C. Persad

Sturm College of Law: Faculty Scholarship

The authors provide the first age-standardized race/ethnicity-specific, state-specific vaccination rates for the United States. Data encompass all states reporting race/ethnicity-specific vaccinations and reflect vaccinations through mid-October 2021, just before eligibility expanded below age 12. Using indirect age standardization, the authors compare racial/ethnic state vaccination rates with national rates. The results show that white and Black state median vaccination rates are, respectively, 89 percent and 76 percent of what would be predicted on the basis of age; Hispanic and Native rates are almost identical to what would be predicted; and Asian American/Pacific Islander rates are 110 percent of what would be …


Equal Protection And Scarce Therapies: The Role Of Race, Sex, And Other Protected Classifications, Govind C. Persad Jan 2022

Equal Protection And Scarce Therapies: The Role Of Race, Sex, And Other Protected Classifications, Govind C. Persad

Sturm College of Law: Faculty Scholarship

The COVID-19 pandemic brought debates over the use of age in scarce resource allocation to the fore once again. Initially, particularly in developed countries, debates surrounded the use of older age as an exclusion or lower-priority criterion for receipt of scarce medical interventions such as ICU beds and ventilator therapy. Many advocacy groups for older adults argued that age should not be used as a criterion for access to such interventions.[1] In developed countries and in particular the United States, they were largely successful, at least with respect to formal policy, ensuring that resource allocation policies excluded or minimized the …


A Comprehensive Covid-19 Response—The Need For Economic Evaluation, Govind C. Persad, Ankur Pandya Jan 2022

A Comprehensive Covid-19 Response—The Need For Economic Evaluation, Govind C. Persad, Ankur Pandya

Sturm College of Law: Faculty Scholarship

Recently, the World Health Organization has exhorted countries to fight the Covid-19 pandemic with other interventions in addition to vaccines. But for countries to mount a comprehensive and effective response, more than exhortation is needed. Policymakers must understand the benefits and burdens associated with various policy options. They also have to be equipped to rigorously and systematically compare these benefits and burdens, both when evaluating individual policies and when determining which policies to include in a legislative or regulatory package.


Errors In Converting Principles To Protocols: Where The Bioethics Of Us Covid‐19 Vaccine Allocation Went Wrong, William F. Parker, Govind C. Persad, Monica E. Peek Jan 2022

Errors In Converting Principles To Protocols: Where The Bioethics Of Us Covid‐19 Vaccine Allocation Went Wrong, William F. Parker, Govind C. Persad, Monica E. Peek

Sturm College of Law: Faculty Scholarship

For much of 2021, allocating the scarce supply of Covid-19 vaccines was the world's most pressing bioethical challenge, and similar challenges may recur for novel therapies and future vaccines. In the United States, the Centers for Disease Control and Prevention's Advisory Committee on Immunization Practices (ACIP) identified three fundamental ethical principles to guide the process: maximize benefits, promote justice, and mitigate health inequities. We argue that critical components of the recommended protocol were internally inconsistent with these principles. Specifically, the ACIP violated its principles by recommending overly broad health care worker priority in phase 1a, using being at least seventy-five …


Dose Optimisation And Scarce Resource Allocation: Two Sides Of The Same Coin, Garth Strohbehn, Govind C. Persad, William F. Parker, Srinivas Murthy Jan 2022

Dose Optimisation And Scarce Resource Allocation: Two Sides Of The Same Coin, Garth Strohbehn, Govind C. Persad, William F. Parker, Srinivas Murthy

Sturm College of Law: Faculty Scholarship

Objective: A deep understanding of the relationship between a scarce drug's dose and clinical response is necessary to appropriately distribute a supply-constrained drug along these lines.

Summary of key data: The vast majority of drug development and repurposing during the COVID-19 pandemic – an event that has made clear the ever-present scarcity in health care systems –has been ignorant of scarcity and dose optimisation's ability to help address it.

Conclusions: Future pandemic clinical trials systems should obtain dose optimisation data, as these appear necessary to enable appropriate scarce resource allocation according to societal values.


Obligations In A Global Health Emergency - Authors' Reply, Ezekiel J. Emanuel Dec 2021

Obligations In A Global Health Emergency - Authors' Reply, Ezekiel J. Emanuel

Sturm College of Law: Faculty Scholarship

No abstract provided.


Letter In Reply To Bernard Prusak, Et Al., Govind C. Persad Nov 2021

Letter In Reply To Bernard Prusak, Et Al., Govind C. Persad

Sturm College of Law: Faculty Scholarship

Scarce medical resource allocation should aim to prevent harm, especially to those who would be most disadvantaged if not helped. Bernard Prusak et al.’s letter reveals a narrow vision of which harms and disadvantages matter, one that overlooks opportunities to simultaneously prevent important harms and avoid exacerbating disadvantage.


Tailoring Public Health Policies, Govind Persad Jul 2021

Tailoring Public Health Policies, Govind Persad

Sturm College of Law: Faculty Scholarship

In an effort to contain the spread of COVID-19, many states and countries have adopted public health restrictions on activities previously considered commonplace: crossing state borders, eating indoors, gathering together, and even leaving one's home. These policies often focus on specific activities or groups, rather than imposing the same limits across the board. In this Article, I consider the law and ethics of these policies, which I call tailored policies.In Part II, I identify two types of tailored policies: activity-based and group-based. Activity-based restrictions respond to differences in the risks and benefits of specific activities, such as walking outdoors and …


Preventing Wind Waste, K.K. Duvivier Jun 2021

Preventing Wind Waste, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

The United States has vast offshore wind resources—nearly double the total electricity consumption of the country—ideally located in close proximity to the largest population centers. This abundance has remained stubbornly untapped for over a decade, without a single commercial scale wind project built in federal waters as of early 2021. In contrast to obstruction by the Trump administration, President Biden, in his first days in office, singled out offshore wind development as one of his priorities for tackling the climate crisis. As a result, the United States may soon see an offshore wind rush. Onshore, the United States is a …


Becoming Global Lawyers? A Comparative Study Of Civic Professionalism, John Bliss Jan 2021

Becoming Global Lawyers? A Comparative Study Of Civic Professionalism, John Bliss

Sturm College of Law: Faculty Scholarship

Through their professional education and training, new lawyers are generally encouraged to adopt a civic vision of professional identity. This article explores convergences and diverges in how new lawyers entering an increasingly globalized legal profession conceive of their civic roles in different national contexts. In particular, I examine corporate lawyers-in-training in the U.S. and China, drawing on interviews and a cross-cultural identity mapping method to compare their accounts of the lived experiences of civic professionalism. I find that professional identity formation in the U.S. sample is largely marked by role distancing and a sense of constrained public-interest expression. In contrast, …


Privacy Losses As Wrongful Gains, Bernard Chao Jan 2021

Privacy Losses As Wrongful Gains, Bernard Chao

Sturm College of Law: Faculty Scholarship

Perhaps nowhere has the pace of technology placed more pressure on the law than in the area of data privacy. Huge data breaches fill our headlines. Companies often violate their own privacy policies by selling customer data, or by using the information in ways that fall outside their policy. Yet, even when there is indisputable misconduct, the law generally does not hold these companies accountable. That is because traditional legal claims are poorly suited for handling privacy losses.

Contract claims fail when privacy policies are not considered contractual obligations. Misrepresentation claims cannot succeed when customers never read and rely on …


What We Do: The Life And Work Of The Legal Writing Professor, David I.C. Thomson Jan 2021

What We Do: The Life And Work Of The Legal Writing Professor, David I.C. Thomson

Sturm College of Law: Faculty Scholarship

The life of the legal writing professor in today’s law schools is a challenging yet rewarding one. Out of necessity, over the last thirty years the pedagogy of legal writing has expanded to include much more than just writing skills—it has become every law student’s introduction to a broad set of basic lawyering skills and is more appropriately styled the Lawyering Process (LP). The increasing gravity and responsibility of the Lawyering Process course has led to expansion of credits given to the course and gradually to greater status and equity to the faculty who teach it, although most of us …


Questions Of Citizenship And The Nature Of "The Public", Sarah Schindler Jan 2021

Questions Of Citizenship And The Nature Of "The Public", Sarah Schindler

Sturm College of Law: Faculty Scholarship

This essay is taken from a talk given at a symposium discussing Professor Ken Stahl’s book, Local Citizenship in a Global Age. It is not a traditional book review, but rather a series of musings inspired by the ideas in the book. Professor Stahl’s new book, Local Citizenship in a Global Age, addresses a number of important issues, many of which have been the focus of my prior work: the existence of boundaries, borders, and the spaces in between; who we include in those boundaries and who we exclude; public space, private space, and the lines between them; spaces of …


Allocating Medicine Fairly In An Unfair Pandemic, Govind Persad Jan 2021

Allocating Medicine Fairly In An Unfair Pandemic, Govind Persad

Sturm College of Law: Faculty Scholarship

America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. How can the allocation of scarce treatments for COVID-19 and similar public health threats fairly and legally respond to these racial disparities? Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that this prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust. I argue …