Missed Opportunities for Compassion: A Call to Action for Incarcerated Individuals Denied Compassionate Release

In 2016, a total of 4,117 state and federal prisoners died in publicly or privately operated prisons. Each year from 2001 to 2016, an average of 88% of deaths in state prisons were due to natural causes, with more than half of those due to cancer, heart disease or liver disease, conditions for which non-incarcerated citizens often benefit from palliative care and hospice. Prisoners age 55 and older are the fastest-growing segment of the population residing in prisons, as well as those with the highest mortality rate. Compassionate release of seriously ill prisoners became a matter of federal statute in 1984 and has currently been adopted by the majority of U.S. prison jurisdictions. The spirit of the mandate is based on the idea that catastrophic health conditions ie terminal illness affect the four principles of incarceration: retribution, rehabilitation, deterrence, and incapacitation. Concerned about an aging prison population, overcrowded facilities, and soaring costs, many policy makers are calling for a wider use of compassionate release for persons with terminal illness as well as broader prison reform. The prognosticating criteria of compassionate release guidelines are clinically flawed, and the application and procedural barriers are prohibitive. In this paper we review cases of patients who qualified for compassionate release but had their applications denied. We will discuss the urgent need for access to quality palliative medicine for incarcerated persons with advanced illness and call healthcare providers to action with the aim of reducing suffering and promoting social justice for those in need.

Administrative Procedure and Judicial Review in Germany

This chapter explores administrative procedure and judicial review in Germany. The German Basic Law contains a guarantee of access to justice. According to section 40(1) of the Code of Administrative Court Procedure (CACP), recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. German administrative court procedure generally aims to protect subjective rights. In general, all measures taken by a public authority are subject to review by courts. This principle forms an essential part of the fundamental rights constitutionally guaranteed. Thus, no measure by the public administration is excluded from this guarantee. The infringement of a procedural provision with protective effects does not necessarily lead to the right of the applicant to have the decision quashed. This usually requires the infringement of a right of the appellant resulting from substantive law. Damages cannot be claimed within the same (administrative) court proceeding that aims to quash an administrative decision.

Restatements of Statutory Law: The Curious Case of the Restatement of Copyright

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements projects but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century. This Article explores the analytical and historical foundations of that mismatch and shows how the Restatement of Copyright reinforces the need to tailor a methodological template and perspective that is sensitive to the nature of statutory interpretation. It explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading, and seemingly biased results that risk undermining the legitimacy of the eventual product. Finally, the Article explains how the mismatch between the two is capable of being remedied by a series of modest—yet significant—changes, which could allow the project to serve as a template for future statutory Restatements. These include: emphasizing the centrality of the statutory text and relevant interpretive sources, adopting crucial perspectival differences between incremental lawmaking and statutory interpretation, and highlighting the unique legislative process through which the statute was developed.

Restatement of the Law, Copyright: A Useful Resource for Practitioners and Courts or a Rashomon Exercise?

As the Ninth Circuit succinctly observed, when deciphering copyright law, “[w]e begin, as always, with the text of the statute.” An examination of any aspect of copyright law commences with the text of Title 17 of the United States Code (the “statute”), and then turns to case law for adjudications and interpretations of the relevant statutory text, or as the primary source of law in the gaps in the statute. Everything else is secondary and not, of course, a substitute for the law, whether it is legislative history, Copyright Office (and other government agency) studies, treatises, or other commentary. If copyright law consists predominantly of federal statute, how, if at all, will the American Law Institute (“ALI”) project to prepare a Restatement of the Law of Copyright (the “Restatement”) provide a useful or necessary resource for attorneys and the courts? In the face of the primacy of the enacted statutory text, why undertake a project to recast and rephrase the law? What, if any, use might it yield to practitioners and courts, and equally importantly, will consequential harms result? From the inception of the Restatement project, the creative community has collectively viewed the project with skepticism about its necessity and fears about its purpose and biases, and the resultant impact on the livelihoods of creators. This Response focuses on the practical uses, if any, of the Restatement for attorneys and courts grappling with copyright issues. The Response also examines, from a practitioner’s point of view, the Restatement’s potential to harm the ecosystem of the copyright creative community, and the likelihood that the harm will outweigh any value the Restatement might bring to clarifying the law.

Between Code and Treatise: The Hard Challenge of the Restatement of Copyright

The proposed Restatement of Copyright raises a question that has been obvious to everyone from the very start of the project: How do you restate an area of the law governed by a comprehensive federal statute? Restatements have, to date, focused near-exclusively on common law subjects. The Reporters of other Restatements thus did not operate in the shadow of an authoritative uniform federal statute. Instead, they faced an unruly and “ever-growing mass of decisions in the many different jurisdictions, state and federal, within the United States.” From this mass of decisions, the Reporters derived the “black-letter law” and “restated” the law in a form resembling a code. In doing so, reporters sought to bring order, clarity, and coherence to a body of law that lacked any other means of doing so. But if this act of restating the law in the form of a code is a central feature of a Restatement, then how do you restate an area of law that already has a comprehensive code? What is to be gained by essentially re-codifying the law?

The Past, Present, and Future of the Restatement of Copyright

It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the project forward, and despite the persistence of serious objections from within the membership of the project (including many of the project’s Advisers), the first draft of the Restatement is scheduled to go to a vote seeking adoption by the organization’s full membership in the middle of 2021.

Developing Statewide Violence Prevention Programs in Health Care: An Exemplar From Massachusetts

Workplace violence is on the rise in health care. This problem contributes to medical errors, ineffective delivery of care, conflict and stress among health professionals, and demoralizing and unsafe work conditions. There is no specific federal statute that requires workplace violence protections, but several states have enacted legislation or regulations to protect health care workers. To address this problem in their state, the Massachusetts Health & Hospital Association developed an action plan to increase communication, policy development, and strategic protocols to decrease workplace violence. The purpose of this article is to report on the quality and safety improvement work that has been done statewide by the Massachusetts Health & Hospital Association and to provide a roadmap for other organizations and systems at the local, regional, or state level to replicate the improvement process.

Title IX and Official Policy Liability: Maximizing the Law’s Potential to Hold Education Institutions Accountable for Their Responses to Sexual Misconduct

Published: Erin E. Buzuvis, Title IX and Official Policy Liability: Maximizing the Law’s Potential to Hold Education Institutions Accountable for Their Responses to Sexual Misconduct, 73 OKLA. L. REV. 35 (2020).Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement—issued in the form of the Department of Education’s 2011 “Dear Colleague Letter”—to begin to address and improve their policies and practices for preventing and responding to sexual misconduct. Recently the Department of Education has incorporated the judicial deliberate indifference standard into its own regulations for enforcing Title IX. As a result, both judicial and administrative enforcement of Title IX may soon converge into the same generous standard that puts very little pressure on institutions to proactively or reactively respond to sexual misconduct on their campuses and in their communities. By responding only minimally to sexual misconduct, an institution can easily avoid committing deliberate indifference, while at the same time steering clear of the ever-present threat of litigation by respondents and individuals disciplined for sexual misconduct.In light of this concern about unidirectional litigation pressure, this Article seeks to highlight a lesser-known Title IX theory of liability with the potential to promote institutional accountability for sexual misconduct official policy liability. Simpson v. University of Colorado was the first case to recognize that educational institutions are liable under Title IX not only for indifferent response to the sexual misconduct of those under their control but also for sexual misconduct caused by their official policies. But this alternative theory of liability has not been widely utilized by plaintiffs’ lawyers, and the majority of judicial decisions that have considered it have found it not to apply. Two lower courts recently countered this trend by denying motions to dismiss claims of official policy liability against both Baylor University and the University of Tennessee. In both cases, plaintiffs sought damages for sexual assault experienced at the hands of other students and claimed that their universities’ official policies of indifference to sexual misconduct caused the assault. After analyzing the decisions in those cases, this Article explores the potential of official policy liability as a tool for maximizing Title IX’s potential to promote institutional accountability, even in an era characterized by lax regulatory enforcement and litigious respondents.

Some Practical Aspects of Invalidity of Procedures for Determining the Supplier (Contractor, Provider) and State (Municipal) Contract

The Federal statute аbout the contract system contains rules allowing invalidating the definition of a supplier (contractor, performer), as well as a contract. In the course of the civil law reform, significant changes were made to the rules on deal. In particular, a deal concluded in violation of the requirements of a law or other legal act became, as a general rule, disputed. The change in the legislator's approach to invalid deal naturally affected the courts application of invalidity rules to state and municipal contracts. In the same cases, contracts are considered both void and unquestionable. The authors set a task to analyze the practice of applying the rules on the invalidity of deals to state and municipal contracts, as well as the procedures for determining the supplier (contractor, provider) in order to identify existing trends and form the most objective approach when making decisions on the invalidity of contracts. The article concludes that state and municipal contracts can be challenged on most grounds, as well as the need to identify the feasibility and validity of applying invalidity as a way to protect the violated rights of subjects of the contract system.