Model Language for Supported Decision-Making Statutes

States often impose guardianship on people whose disabilities interfere with their decision-making ability, thereby entrusting another person with decision-making on their behalf. People with disabilities, activists, and scholars have critiqued the guardianship system for not doing enough to investigate the actual limitations of those subjected to guardianship and for denying too many of their rights.Continue reading “Model Language for Supported Decision-Making Statutes”

Copyright and the Brain

This Article explores the intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer.” Embedded within this test are several assumptions about audiences and art. Brain science calls theseContinue reading “Copyright and the Brain”

Inmate Constitutional Claims and the Scienter Requirement

Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials. The Eighth Amendment currently requires convicted prisoners to show that a prison official acted “maliciously or sadistically” to establish an excessive force claim and with subjective “deliberate indifference” to establish a claim of unconstitutional prison conditions. SimilarContinue reading “Inmate Constitutional Claims and the Scienter Requirement”

Choosing Wisely: Envisioning Perinatal Hospice Notification Laws that Inform and Empower

Perinatal hospice refers to a cluster of medical services that some individuals choose after the diagnosis of a life-limiting fetal condition. At its core, perinatal hospice involves many kinds of support—including physical, emotional, social, and spiritual—for the pregnant person, family members, and the fetus or newborn from the time of diagnosis to bereavement. The American CollegeContinue reading “Choosing Wisely: Envisioning Perinatal Hospice Notification Laws that Inform and Empower”

Sex, Causation, and Algorithms: How Equal Protection Prohibits Compounding Prior Injustice

U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute (VMI) may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-calledContinue reading “Sex, Causation, and Algorithms: How Equal Protection Prohibits Compounding Prior Injustice”

Banking on Democracy

The financial system is unequal and exclusionary even as it is supported, funded, and subsidized by public institutions. This is not just a flaw in the financial sector; it is a foundational problem for democracy. Across the financial industry, entrepreneurs, regulators, media, and scholars promote the goal of “financial inclusion” or “access to credit.” Facebook’sContinue reading “Banking on Democracy”