Student Note
This Note will advocate for the position taken by the Third and Seventh Circuits that incarcerated individuals’ right to affirmative assistance in accessing legal materials extends past the pleading stage to all stages of civil rights claims and post-conviction criminal appeals. U.S. Supreme Court precedent supports this position, and judicial clarity on this issue is required to best protect the constitutional right of access in light of significant existing barriers to incarcerated litigants’ access to courts.
by Alison Aimers
Essay
The ethical goals of the legal doctrine of informed consent are lofty. The law requires that clinicians explain the risks, benefits, and alternatives of proposed treatments to patients, and to respect patient autonomy through voluntary, informed medical decisions aligned with individual values and preferences. Yet in practice, patients often struggle to comprehend the risks and alternatives of a proposed medical intervention. Since investigators began analyzing the sufficiency of informed consent, it has been recognized that the current rules, which focus solely on clinical disclosures, are inadequate in addressing disparities associated with education, race/ethnicity, and age. Despite technically “adequate” disclosures under the legal doctrine of informed consent, patients may consent to major procedures with little substantive grasp of the risks. Shifting the law’s emphasis from disclosures alone to disclosure and comprehension will better align the ethical goals of informed consent with the legal rules that govern it.
by Valerie Gutmann Koch
Essay
Legal scholars delight in gap-filling. They frequently claim that their works have identified a gap in the literature and to have filled (or begun filling) that gap. However, all too often, these same papers fail to explain why the gap needed to be filled at all. Indeed, despite a robust tradition of meta-scholarship, the legal literature is largely devoid of a theory of academic gap-filling. This essay fills that gap, arguing that gap-filling for the sake of gap-filling is an error for three interconnected reasons. First, gaps might exist for a good reason. Second, concern with gap-filling is often a misguided attempt to address other issues that are tangential to legal scholarship. Finally, focusing on gaps is incredibly limiting. Instead, this essay suggests that legal scholars should focus on exploring questions that interest them, regardless of whether that exploration leads them to a “gap.”
by Noah C. Chauvin
