Implications of Mill’s Theory of Liberty for the Regulation of Hate Speech and Hate Crimes

The notion that utilitarianism cannot support a theory of fundamental rights is a recurring source of conflict in law and philosophy. Those who adhere to this view argue that a utilitarian or consequentialist approach cannot provide a stable, permanent justification for rights: at any moment, the utilitarian calculus might conclude that what it considered a right yesterday, actually reduces total welfare, and therefore is not a right today. Perhaps no one has gone further in attempting to refute this claim than John Stuart Mill. As a result, any effort to construct a consequentialist theory of fundamental rights must draw at least partially on Mill's work.

In this Article, I rely on Mill's theory of liberty to construct a consequentialist argument to regulate "hate speech," hate crimes, and other conduct where an individual's actions are motivated by racial, ethnic, religious or political animosity. I compare current free speech doctrine with the frame- work to regulate free speech suggested by Mill's theory, and I argue that Mill's theory provides a more coherent explanation of prominent decisions in this area than many versions of free speech theory currently advanced by first amendment scholars. However, Mill's framework is inconsistent with the Supreme Court's rhetoric in its most recent hate speech decision, R.A.V. v. City of St. Paul.

Ultimately, Mill's theory implies that it is socially desirable to regulate hate speech, but only if that speech violates an existing criminal code provision, such as a provision governing harassment. Thus, under Mill's theory, regulating hate speech would involve nothing more than enacting a scheme of penalty-enhancements for hate-motivated speech and conduct.

Medical Malpractice: Do Physicians Have Knowledge of Legal Standards and Assess Cases as Juries Do?

Traditionally, physician malpractice has been adjudicated under a negligence rule in tort. The negligence rule can be described as imposing liability for patient injury if the physician’s level of care was less than that specified by the courts ("due care"). The due care level generally required in medical malpractice cases is that level of care "ordinarily possessed and employed by members of the profession in good standing." From a law and economics perspective, if the due care level chosen by the courts is socially optimal, then theoretically physicians will be induced to provide socially optimal due care, resulting in a system in which the provision of medical care is socially optimal.

Hence, from a law and economics perspective, the judicial system can theoretically create an encompassing incentive structure that results in physicians providing nonnegligent care so as to avoid malpractice liability at a level that is socially optimal. Indeed, this incentive effect is a well recognized potential benefit of the tort system and is used as a theoretical justification for the current malpractice adjudicatory structure. In addition to providing an overall incentive structure for physician behavior, the system can function dynamically and specify its particular standards through its "teaching" role as communicated through the case law. The case law can thus provide physicians with rules of conduct as to what care is socially acceptable (nonnegligent) and socially unacceptable (negligent).

To determine whether the theoretical benefits of the medical malpractice tort system incentive structure actually accrue to society, a reasonable starting point is to empirically examine whether fundamental assumptions regarding the system are true. First, physicians are assumed to be knowledgeable about the legal system such that they respond appropriately to the incentive structure provided by it: presumably, actors must know about incentives in order to be affected by them. Second, negligence assessments of physician action by juries and physicians are assumed to be based on a single standard of medical appropriateness that is commonly understood by both groups. This implies that, on a theoretical level, physicians should have knowledge of negligent and nonnegligent care through their own professional training and thus should similarly assess negligent versus nonnegligent care as defined by juries."

This study represents the first empirical assessment of the validity of these key assumptions." It attempts to answer two questions. First, do physicians have knowledge of the medical malpractice system through an understanding of the legal concept of negligence (the standard by which their actions are judged) and the relevant case law (the formal communication method between the medical malpractice system and society at large, including physicians)? Second, to what extent are physician assessments of actual malpractice cases in relative concordance with jury verdicts, therefore reflecting an application of the same standard of medical appropriateness?

The answers to these questions may be relevant in determining how the tort system functions and, if necessary, methods to improve it. In other words, assessing physician knowledge of the law may help determine how the tort system can impact and alter the behavior of the actors that are purportedly deterred or encouraged by it. Further, physician assessment of actual mal- practice cases may shed light onto whether a legal definition of medical appropriateness can be viewed and applied similarly by physicians and lay agents of the legal system itself. In short, once empirical data is obtained, models can then be constructed to describe the effect of the tort system on physician behavior.

Section I describes the data collection methods and reports the results of the study. Section 11 discusses these results and their implications. Section III presents proposed models of physician behavior that take into account the data discussed in the preceding sections. Finally, Section IV summarizes the Article's findings and offers some concluding remarks.

Comment: Negotiating Justice: The Criminal Trial Jury in a Pluralist America

This Comment examines the constitutionality of racial quotas in trial juries, and argues that applying racial quotas to the jury is normatively and politically desirable as well as constitutionally permissible. In making the latter claim, this Comment is at odds with the opinions of many scholars and professionals who have written on this issue."

Most experts agree that the Supreme Court's stalwart insistence on "color blind" jurisprudence makes it likely that jurymandering mechanisms will have to pass "strict scrutiny." They contend, further, that proponents of jurymandering programs are unlikely to convince the Court either that the state has a compelling interest in utilizing racial quotas, or that racial quotas are sufficiently well-tailored to achieve that aim." This Comment argues, to the contrary, that states can demonstrate compelling interests which justify using racial quotas when selecting criminal juries. Moreover, this Comment contends that using racial quotas in the jurybox is the best-formulated, best- tailored approach to achieve these compelling state interests.

Perhaps the most common criticism of the use of racial quotas in jury selection is that it will transform the jury from a "deliberative" body focused on ferreting out the facts of crime into a body in which jurors "represent" their racial constituency, a body in which jurors might "just as well mail in their verdict." What emerges from this Comment is a view of the jury neither as a deliberative institution wherein citizens cast off allegiance or attachment to social or racial subgroups, nor as a representative body in which jurors practice crass interest-group politics at the expense of the polity as a whole. Rather, the jury is seen as a forum in which individuals drawn from interested groups negotiate a just verdict in a specific criminal case within a range of possible just outcomes.

This understanding of the jury has much in common with the familiar model of multiparty negotiation, in which the success of the project depends on the attendance of all interested parties at the bargaining table. Negotiators recognize that the failure to include significantly interested parties not only casts doubt on the fairness of the negotiation proceedings (especially if they are held in private), but may also throw the continued success of the negotiated agreement into doubt.

Conceptualizing the jury as a body that represents both particular group interests and societal interests is not new. In fact, the structure of the institution, as it has developed historically suggests a reading that appreciates such negotiated outcomes. Throughout the history of the criminal jury in England and the United States one can find analogues to the jurymandered jury.

Section I of this Comment outlines the Supreme Court's approach to the issue of race-conscious state action generally, and identifies several state interests that the Court has recognized as compelling. Section II demonstrates how current jury selection procedures fail to achieve these compelling state interests. Section III looks at two models of the criminal trial jury. The first model, that of the "representative" jury, it is argued, has been the bogey-man against which much Supreme Court jurisprudence concerning the jury has developed. The second model is theoretically similar to the model of multiparty negotiation and has historical roots in the jury that the Constitution's Founders knew. This model, I argue, provides the theoretical justification for applying racial quotas to trial juries.

Comment: Tort Reform to Ensure the Inclusion of Fertile Women in Early Phases of Commercial Drug Research

The goal of this Comment is to demonstrate how litigation can be used to modify the behavior of pharmaceutical manufacturers, and how the prohibitive cost of litigation can be reduced for women who have been injured by drugs not tested on women. Currently, if an injured woman sues a manufacturer for not testing the drug on women, she must prove both that the drug should have been tested on women and that the drug caused the injury because it was not tested on women. Because the injured woman presumably does not have a laboratory or the financial resources to study and prove this causation, her claim will be dismissed for failure to state a cause of action. This Comment proposes that state courts or state legislatures adopt a rebuttable presumption that a pharmaceutical defendant's lack of testing is the cause of the woman's injury-with a correspondingly shifted burden of proof.

Section I of this Comment summarizes the growing medical understanding of differences in responses to drugs and of the possible harm to women excluded from clinical trials, particularly early phases of studies. This Section explains the reasons women have been excluded from clinical trials. Section II addresses whether those reasons justify exclusion. Section III proposes that litigation be brought, or threatened, by women who have been injured by drugs not tested on women. Because the main legal difficulty facing a plaintiff in such suits is proving the element of causation, this Comment proposes that courts shift the burden of proof and create a rebuttable presumption that the defendant manufacturer's drug caused the plaintiff's injury.

In Section IV this Comment will explain why a litigation approach is both necessary and likely to be effective. Section IV will also discuss circumstances where such rebuttable presumptions and shifted burdens are appropriate in the legal system, and why these women's drug product liability suits are appropriate in light of legal, ethical, and scientific policy considerations.

Comment: A Role for Courts: Treating Physician Evidence in Social Security Disability Determinations

In assessing the Disability Insurance program, the Social Security Administration ("SSA") has recognized that "[the steps in the current disability process have not changed in any important way since the beginning of the . . . program in the late 1950s," yet at the same time, the SSA has acknowledged that "case loads, types of disabilities, and the demographic characteristics of individuals with disabilities who are potentially eligible for benefits have changed radically."

With these changes has come increasing discord about how the SSA should make disability determinations. One point of contention has been the treating physician rule. The treating physician rule governs the weight that SSA adjudicators give to the opinions and evidence provided by the disability benefit claimant's treating physician. The argument about what weight is given to treating source evidence is a proxy for a deeper argument about what disability is, who should define it, and how disability determinations should be made.

Two themes emerge from this argument. First, creating a strong treating physician rule has been one way for courts to introduce judicial discretion into their review of the disability determinations made by the SSA's Administrative Law judges ("ALJs"). Insofar as federal courts apply a deferential substantial evidence review to ALJ decisions, they have only a limited ability to attack ALJ disability determinations directly. Moreover, because social security decisions have been publicly perceived as politically motivated, or at least tainted by an SSA bias against expanding disability benefits, courts have tried to shift more responsibility for disability determinations onto doctors. In this way, courts can, implicitly shape ALJ procedures and influence the probative value given to medical evidence, even when they are powerless to reverse a decision outright. Meanwhile, the SSA has struggled against judicial intervention to maintain its control over the disability determination process, partly to reduce costs, but partly to protect its jurisdiction.

Second, attempts by Congress and the SSA to objectively define disability in these programs belies medical reality and reveals the second theme in this debate over disability. The SSA has aimed for an objective definition of disability in order to bureaucratize and generalize disability determinations. However, this admirable attempt to treat all applicants equally has lead to overgeneralization since individualized determinations would be more consistent with medical definitions of disability. Furthermore, admitting that context is important and that medical determinations are partly subjective will not harm the framework of objective decision-making envisioned by Congress and the SSA.

Section I of this Comment will address the disagreement between the courts and the SSA over the treating physician rule. It will suggest that the regulations promulgated by the SSA in 1991 did not resolve the dispute over the appropriate weight to be given to treating physician evidence. Section II will discuss the differences between medical and legal definitions of disability and the resulting differences in identifying disability. Section II will then make brief recommendations about how to better integrate medical and legal conceptions of disability within the Social Security disability programs, suggesting that medical definitions cannot be directly incorporated into the SSA's fundamentally legal disability decision. Instead, a strong treating physician rule should be used to give a large amount of actual discretion over the decision to doctors, while maintaining the SSA's formal authority. This solution acknowledges the institutional needs of both doctors and lawyers and supports voluntary acquiescence by Social Security adjudicators to the opinions of treating physicians.