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Poked, Prodded, and Privacy: Parents, Children, and Pediatric Genetic Testing
“Knowledge is power,” so the saying goes. But does that always prove true? What if knowledge comes without the power or resources to act? What if knowledge is unwanted and uninvited?
Significant advancements in genetics and genomics have thrust these and other difficult questions into the professional and public discourse. These developments include “pediatric predisposition genetic testing” (“PPGT”), a term used in this Article to describe genetic testing performed on a minor with parental consent to either determine with certainty or predict the risk that the minor will develop an adult-onset disease.
PPGT pits parental rights against children’s rights in unique and unprecedented ways. American law and tradition have long recognized the rights of parents to consent to myriad types of healthcare services for their children, presuming that parents act in their children’s best interests. But PPGT raises questions about that presumption. Problematically, PPGT may impose unwanted information on nonconsenting children—information those children must live with for the rest of their lives. Too often, children become pawns in larger sociopolitical battles fought primarily between parents and the state, with the children’s rights and interests cast aside. With PPGT, where science has outpaced law and policy, children’s rights face subordination yet again.
To mitigate harm and protect children’s rights in this “age of genetics,” this Article argues for the development of a novel theoretical framework: a “right to future privacy.” In doing so, it eschews the existing jurisprudence’s myopic focus on parental rights and parent-state conflicts and proposes a framework that accounts for children’s privacy and autonomy amid fast-developing, and often under-regulated, technologies like PPGT. At a time when privacy rights are threatened by myriad sources, this Article reaffirms and reinvigorates the value of children’s lifelong genetic and personal privacy
Bridging the Gap to Every American: How a National Regulatory Sandbox Can Prompt Radical Collaboration to Adopt Legal Artificial Intelligence Tools
The United States of America is at a crossroads. The foundational promises of the American dream—life, liberty, and the pursuit of happiness—have been thrust into public pessimism as the nation’s most economically vulnerable populations find themselves outsiders in their own communities, unable to access the legal tools and services required to resolve even the most rudimentary of legal disputes. In the wake of groundbreaking studies by the Institute for the Advancement of the American Legal System and the American Bar Association’s Commission on the Future of Legal Services, the need for alternative legal service providers is more prevalent than ever. The recent advent of legal technology tools powered by generative artificial intelligence has the potential to provide low-cost legal services for those who need it the most. This Article explores a litany of actors in the civil legal services marketplace that are harnessing the power of generative artificial intelligence to help bridge the gap for the most vulnerable. In addition, this Article contributes to a new area of legal scholarship advocating for a nationwide “Regulatory Sandbox,” allowing for lawyers, policymakers, entrepreneurs, and innovators to boldly envision a world where alternative legal services can empower our nation’s most vulnerable populations to gain broader access to the legal system and, ultimately, solutions to their legal ailments. Policymakers, stakeholders, and readers alike can view this Article not as a legal treatise, but as an informative and easily digestible call to action that seeks to solve the access to justice gap in the United States
Can We Get a Refund? Judicial Remedies for Drugs That Do Not Work
Congress created expedited pathways that speed approval of potentially lifesaving new drugs by requiring potentially less rigorous evidence that a drug works for a new indication prior to FDA approval. However, the 2021 controversial approval of a new Alzheimer\u27s treatment, aducanumab, shined a spotlight on the increasing potential for the FDA to approve high-priced-minimally-effective drugs. These drugs inflict serious, difficult-to-measure harms on tens of thousands of patients and diffuse financial harms for payors and the public, cumulating in over tens of millions of dollars every year. The growing problem of high-cost drugs is well known, but this article explores a solution that prioritizes access to medications through restructuring state fraud laws to redress financial injuries to Medicaid programs from minimally-effective drugs after FDA approval. Currently, once a drug receives FDA approval, tort law and regulatory hurdles make it difficult to challenge a drug\u27s efficacy in practice. Potential harms of high-priced-minimally-effective drugs can be amplified when patients and payors are left without judicial remedy. Rather than deny patients access to potentially lifesaving new drugs in contradiction to current regulations, this article explores an expansion of state fraud laws to discourage confirmatory trial delays and delayed withdrawals of minimally-effective medications. In short, rather than asking if we can afford to pay for the hope that a new drug will help Americans with life-threatening diseases, we should be asking for a refund
Articulating and Claiming the Right to Stay in the Context of Climate Change
Climate-related displacement is a topic of increasing concern in both academic research and the political, social, and humanitarian spheres. As many seek to develop legal regimes that will allow those living in the most climate-affected areas to move with dignity, individuals and communities living in these countries, regions, and localities are often resistant to the idea of migration as their best adaptation option, and instead call for policy choices that will allow them to stay in place. In this article we seek to legally situate these calls for a right to stay and examine the specific forms that they are taking on the ground. We suggest that there is a typology of right to stay claims, ranging from classic claims—primarily against local government or private actors, against takings or for protection from forced eviction or relocation—to more expansive claims for revised economic, social, or environmental policies to address the underlying drivers of displacement, which may also involve national government and even the international community. We argue that the full range of these different types of claims have relevance in the climate change context, and that such claims may have important legal, moral, and discursive power in efforts to meaningfully address climate change-related displacement in a manner consistent with the rights of those most affected
Alexander S. Glover Jr., et al., Order on Plaintiffs\u27 Motion to Dismiss Counterclaim of Defendant Railroad Valley Mining Company, LLC
Arrests: Legal and Illegal
The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot.
Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it does not always follow, at least not in the Supreme Court. Instead, the Court has ruled some arrests illegal despite the presence of probable cause, the Court’s concern there being with where the arrest took place. Specifically, the Court has ruled repeatedly that an otherwise legal arrest is illegal when performed in a residence that police illegally have entered.
While not about what can count as probable cause, or count as an arrest, this Essay is about their relation. My intention is to demonstrate first that all arrests supported by probable cause are legal, regardless of where they occur or when the probable cause originates; and second that the legality of an arrest is an issue separate from the admissibility of evidence derived from an arrest. To that end, this Essay analyzes an undisturbed line of Supreme Court cases from 1980 to 1990—United States v. Crews, Payton & Riddick v. New York, Welsh v. Wisconsin, Minnesota v. Olson, and New York v. Harris— which when read together can make only misleading sense. By exposing the Court’s penchant for mischaracterizing legal arrests— including those performed with excessive force—as illegal, this Essay concludes that highlighting the proper function of probable cause within the law of arrests can reconcile a currently irreconcilable line of cases