The Role of Dissents in the Formation of Precedent

I argue that dissenting opinions play an important role in the formation of precedent in the context of plurality decisions. Courts typically treat plurality cases as precedential. However, procedures for interpreting and following plurality decisions vary considerably across courts and judges, producing major inconsistencies in the adjudication of cases that are ostensibly governed by the same law. I suggest that, when a majority of judges agrees on legal principle, that principle should have binding effect, even if the judges in principled agreement disagree on result or case outcome. I explain why some courts and most commentators have categorically excluded dissents from the holding category, and why that move is mistaken. First of all, an analysis of the holdings/dicta distinction shows that, in some cases, dissenting views belong on the holding side. Second, if we think that principled decisionmaking is fundamental to the authority and legitimacy of case law, then judicial agreement at the level of rationale or principle merits precedential status, even where those who agree on principle disagree on how a case should come out

Non-Consensual Disclosures

In the course of biomedical research on humans — for example, flu, imaging, and genomic studies — researchers often uncover information about participants that is important to their health and wellbeing. In many cases, the information is not anticipated in advance, and participants did not consent to receiving it. This Article examines the law and policy governing human subjects research, focusing on the set of regulations known as the Common Rule. I argue that human subjects researchers will often have strong ethical reason s to disclose results even when participants did not consent to the disclosure in advance. I also show how the current regulatory scheme stands in the way of ethical disclosures, putting researchers in a difficult position where they might not be able to fulfill their ethical duties without transgressing legal ones. Although we need to contend with autonomy and welfare risks associated with returning results, not to mention financial and administrative costs, these downsides are similarly present in analogous scenarios where non consensual warnings are legally permitted and sometimes even required. There does not appear to be any good reason to make a policy exception for biomedical researchers when it comes to issuing warnings in the form of information disclosure. To aid difficult determinations about which results warrant return, I suggest that policymakers should take advantage of the interest and willingness of the bioethics community to develop consensus norms and incorporate these norms into regulation such that the regulations would at least permit researchers to disclose results whenever consensus standards would recommend disclosure. In this way, the law would make space for ethically optimal conduct without necessarily compelling it. At the same time, bioethicists and researchers should train their attention on non-ideal consent settings — the focus of this Article — rather than continuing to assume or hope that participants will have a chance to consent to the disclosure of results in advance

How to Realize the Value of Stare Decisis: Options for following Precedent

When courts deliberate on the implications of a precedent case in the adjudication of a new dispute, they generally frame the issue as if there are three paths through---{1) follow the precedent, (2) overrule, or (3) distinguish-without acknowledging that option number one contains its own garden of forking paths. My chief aim in this paper is to delineate and evaluate several options for following precedent. I show that we can respect the doctrine of precedent or stare decisis without committing to any one particular method. I argue further that we have good reason to refrain from endorsing any single method for following precedent, and I propose instead a variable approach-one that is sensitive to the contextual factors that make one method preferable to another

Severe Brain Injury, Disability, and the Law: Achieving Justice for a Marginalized Population

Thousands of persons with severe brain injury who are minimally conscious or locked in are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores and analyzes sources of federal, state, and international human rights law that can be leveraged- both in traditional and novel ways-to improve the lives and protect the rights of persons with severe brain injury. We argue that state laws may be the most promising basis for legal action to ameliorate the clinical marginalization and societal neglect faced by persons with severe brain injury, and to promote their recovery and reintegration into their communities

Severe Brain Injury, Disability, and the Law: Achieving Justice for a Marginalized Population

Thousands of persons with severe brain injury who are minimally conscious or locked in are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores and analyzes sources of federal, state, and international human rights law that can be leveraged- both in traditional and novel ways-to improve the lives and protect the rights of persons with severe brain injury. We argue that state laws may be the most promising basis for legal action to ameliorate the clinical marginalization and societal neglect faced by persons with severe brain injury, and to promote their recovery and reintegration into their communities

Stare Decisis and Intersystemic Adjudication

Interpreting and following precedent is a complicated business. Various reasonable but conflicting methods of ascertaining the legal effect of precedent exist. Differences between practices of precedent or doctrines of stare decisis are particularly salient between legal systems or jurisdictions. For example, a state’s judges might embrace different stare decisis norms than federal judges. This situation presents a major quandary for intersystemic jurisprudence that has been largely overlooked in the scholarly literature. Are law-applying judges in the intersystemic context bound by the law-supplying jurisdiction’s methods of interpreting precedent? For example, when the Seventh Circuit Court of Appeals adjudicates a question of Wisconsin state law, do the federal judges have to adopt the interpretive methodology that Wisconsin judges apply to judicial decisions? It is well-settled that the federal judges have to apply Wisconsin precedent, but whether the federal judges have to apply Wisconsin’s doctrines of stare decisis is an open question. Since these doctrines may be highly outcome-determinative, the intuitive answer would seem to be that they are indeed interjurisdictionally binding. That answer, however, is too quick. As this Article documents, in practice judges often do not defer to the law-supplying jurisdiction’s stare decisis doctrine. Although this lack of deference may seem inappropriate, it is not always or necessarily a mistake. This Article presents a novel theory of stare decisis and interpretation in the intersystemic context, which connects the deference quandary to jurisprudential debates about the very nature of law, showing how different legal theories generate different answers to the question of whether, in a given case, methods of interpreting precedent are interjurisdictionally binding. The Article thus illuminates the integral relationship between analytical jurisprudence and a ubiquitous but undertheorized quandary about intersystemic adjudication

Stare Decisis and Intersystemic Adjudication

Interpreting and following precedent is a complicated business. Various reasonable but conflicting methods of ascertaining the legal effect of precedent exist. Differences between practices of precedent or doctrines of stare decisis are particularly salient between legal systems or jurisdictions. For example, a state’s judges might embrace different stare decisis norms than federal judges. This situation presents a major quandary for intersystemic jurisprudence that has been largely overlooked in the scholarly literature. Are law-applying judges in the intersystemic context bound by the law-supplying jurisdiction’s methods of interpreting precedent? For example, when the Seventh Circuit Court of Appeals adjudicates a question of Wisconsin state law, do the federal judges have to adopt the interpretive methodology that Wisconsin judges apply to judicial decisions? It is well-settled that the federal judges have to apply Wisconsin precedent, but whether the federal judges have to apply Wisconsin’s doctrines of stare decisis is an open question. Since these doctrines may be highly outcome-determinative, the intuitive answer would seem to be that they are indeed interjurisdictionally binding. That answer, however, is too quick. As this Article documents, in practice judges often do not defer to the law-supplying jurisdiction’s stare decisis doctrine. Although this lack of deference may seem inappropriate, it is not always or necessarily a mistake. This Article presents a novel theory of stare decisis and interpretation in the intersystemic context, which connects the deference quandary to jurisprudential debates about the very nature of law, showing how different legal theories generate different answers to the question of whether, in a given case, methods of interpreting precedent are interjurisdictionally binding. The Article thus illuminates the integral relationship between analytical jurisprudence and a ubiquitous but undertheorized quandary about intersystemic adjudication

Non-Consensual Disclosures

In the course of biomedical research on humans — for example, flu, imaging, and genomic studies — researchers often uncover information about participants that is important to their health and wellbeing. In many cases, the information is not anticipated in advance, and participants did not consent to receiving it. This Article examines the law and policy governing human subjects research, focusing on the set of regulations known as the Common Rule. I argue that human subjects researchers will often have strong ethical reason s to disclose results even when participants did not consent to the disclosure in advance. I also show how the current regulatory scheme stands in the way of ethical disclosures, putting researchers in a difficult position where they might not be able to fulfill their ethical duties without transgressing legal ones. Although we need to contend with autonomy and welfare risks associated with returning results, not to mention financial and administrative costs, these downsides are similarly present in analogous scenarios where non consensual warnings are legally permitted and sometimes even required. There does not appear to be any good reason to make a policy exception for biomedical researchers when it comes to issuing warnings in the form of information disclosure. To aid difficult determinations about which results warrant return, I suggest that policymakers should take advantage of the interest and willingness of the bioethics community to develop consensus norms and incorporate these norms into regulation such that the regulations would at least permit researchers to disclose results whenever consensus standards would recommend disclosure. In this way, the law would make space for ethically optimal conduct without necessarily compelling it. At the same time, bioethicists and researchers should train their attention on non-ideal consent settings — the focus of this Article — rather than continuing to assume or hope that participants will have a chance to consent to the disclosure of results in advance