Key Questions for Regulators Rise with the Dawn of AI-Driven Healthcare

Guest Blogger

Eric M. Fish
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Posted 11:00 AM by Guest Blogger [link]

Organizing the Federal Government’s Regulation of AI

Guest Blogger

A. Michael Froomkin

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

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Four Roles for Artificial Intelligence in the Medical System

Guest Blogger

W. Nicholson Price II

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

How will artificial intelligence (AI) change medicine?  AI, powered by “big data” in health, promises to transform medical practice, but specifics remain inchoate.  Reports that AI performs certain tasks at the level of specialists stoke worries that AI will “replace” physicians.  These worries are probably overblown; AI is unlikely to replace many physicians in the foreseeable future.  A more productive set of questions considers how AI and physicians should interact, including how AI can improve the care physicians deliver, how AI can best enable physicians to focus on the patient relationship, and how physicians should review the recommendations and predictions of AI.  Answering those questions requires clarity about the larger function of AI: not just what tasks AI can do or how it can do them, but what role it will play in the context of physicians, other patients, and providers within the overall medical system.  Medical AI can improve for patients and improve the practice of medicine for providers—as long as its development is supported by an understanding of what role it can and should play.  Four different roles each have the possibility to be transformative for providers and patients: AI can push the frontiers of medicine; it can replicate and democratize medical expertise; it can automate medical drudgery; and it can allocate medical resources.

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Non-Diagnosis: An Unappreciated but Critical Role for AI in Healthcare

Guest Blogger

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Call for Papers

Jason Mazzone

An international conference sponsored by:

• University of Illinois College of Law
• University of Bologna School of Law
• Johns Hopkins Center for Constitutional Studies and Democratic Development

Paper proposals are invited for the Fourth Illinois-Bologna conference on Constitutional History: Comparative Perspectives. The conference will be held in Chicago on April 29 & 30, 2019.

The conference keynote speaker will be Justice Grant Huscroft of the Court of Appeal for Ontario (Canada).


Accompanying the spread of constitutional government around the world has been a profound interest in the comparative aspects of constitutional law. Scholars have catalogued the differing features of national constitutions and examined how different constitutional systems resolve common legal issues. So, too, judges faced with legal questions have sought guidance in the decisions of constitutional courts of other nations. While comparative constitutional law is therefore a well-established field, less attention has been paid so far to the comparative dimensions of constitutional history. This international conference series aims to address that shortcoming by energizing the study and analysis of constitutional history from comparative perspectives. It provides a forum for presentation and discussion of current research on issues of constitutional history that crosses national boundaries. It also bring together scholars who, at present, are working on constitutional histories of single jurisdictions—with the expectation that conversations among these scholars will allow for sharing of methodologies and point also to fresh areas of research that may transcend national boundaries.

For 2019, the focus of the conference is on Uses of History in Constitutional Adjudication. 

We therefore welcome papers that shed light on the myriad ways in which courts around the world make use of—or ignore—history as they go about deciding cases and the implications and effects of such efforts.

In some nations, the historical meaning of a constitutional provision plays an important role in how courts interpret that provision and then resolve questions of constitutional law. In other nations, historical meaning has relatively little relevance to adjudicating contemporary disputes. A nation’s history can also provide background themes—whether acknowledged or not—that shape how courts approach and situate cases and how they conceive of the role they themselves play in the constitutional system. Historical legacies might provide justification for one outcome over another or limit the options available to a court. Courts might themselves play a role in shaping historical memory by providing in the course of resolving disputes their own reflections upon a nation’s past. Judicial opinions might even be a context for airing of disagreements over the historical record or its lessons. Sometimes courts might decide cases in a way that suggests ignorance of a historical tradition. This might be deliberate: perhaps no institutional actor wants to dredge up the past. Uses of history in constitutional adjudication also raise questions of methodology, including the capacity of courts to conduct historical research and analysis and variations in that regard across national systems. There are also issues of legitimacy: for instance, which kinds of uses of history are defensible in a constitutional regime? And which kinds of history? And when might invocation of history generate public support or opposition? Assessments of current practices, particularly from a comparative perspective, can generate lessons for the future practices of courts—whether longstanding or newly-established—as they adjudicate constitutional cases. These are among the topics papers for the conference could usefully address.  



Scholars interested in presenting a paper at the conference should first e-mail a title and summary of the proposed paper along with a CV to Professor Jason Mazzone at mazzonej[@]illinois.edu. There is no word limit for the proposals but proposals in the range of 500-1,000 words are typical. Proposals received by December 15, 2018 will receive priority. After that date, submitted proposals will be considered if space remains.

For those whose abstracts are accepted, draft papers will be due for circulation three weeks prior to the conference.

Subject to the usual requirements of peer review, papers from the conference will be published as a single volume by Brill. Authors who accept an invitation to present a paper at the conference must agree to have the paper included in the published volume. Additional information about length and formatting requirements for the final versions of the papers will be provided to authors.

Conference participants are responsible for their own travel and accommodation expenses.


Posted 2:53 PM by Jason Mazzone [link]

The Algorithm Will See You Now

Guest Blogger

Claudia Haupt

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

Artificial intelligence (AI) may well turn out to have a transformative effect on the delivery of healthcare services. Various mobile devices now feature “mHealth” applications, prompting healthcare providers to explore novel ways to incorporate these functions into medical care. Technology companies are connecting existing consumer-facing technologies like Alexa to diagnostics AI, creating new avenues of medical advice-giving. Similarly, professional-use algorithms and AI are available on the provider side. As we may be moving from computer-aided diagnosis to algorithm-generated advice, new technical, medical, and legal questions emerge.  What seems like a new frontier in the delivery of healthcare services actually takes us back to the early days of AI—after all, ELIZA’s DOCTOR script, developed in the mid-twentieth century, simulated a psychotherapist.

Technological innovation in healthcare occurs in a densely regulated space dominated by asymmetries of knowledge and social relationships based on trust. Professional advice is valuable to patients and clients because of the asymmetry between lay and expert knowledge. Professionals have knowledge that clients lack, but need to make important life decisions. These relationships are governed by a legal framework of professional advice-giving consisting of several elements, including professional licensing, fiduciary duties, informed consent, and professional malpractice liability. The regulatory goal is to ensure that the patient (or client) receives comprehensive, accurate, reliable advice from the doctor (or other advice-giving professional). Traditionally, this framework assumed interactions between human actors. Introducing AI challenges this assumption, though I will stipulate that AI does not entirely replace human doctors for now.


Posted 11:00 AM by Guest Blogger [link]

Symposium on Artificial Intelligence, Robotics, and Health Care at Yale Law School

JB

The Solomon Center for Health Law and Policy and the Yale Information Society Project will host a conference on The Law and Policy of AI, Robotics, and Telemedicine in Health Care on Friday November 2, 2018, at Yale Law School.

This week on Balkinization we will post essays by some of the conference participants on how Artificial Intelligence and Robotics are changing medicine and health care.
Posted 9:55 AM by JB [link]

Fixing the Constitution's Implied Powers

John Mikhail

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).
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Were the framers originalists (and does it matter)?

Guest Blogger

William Baude

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).


Posted 9:00 AM by Guest Blogger [link]

A Marker of a Disjunctive President

Gerard N. Magliocca

We have a long-running debate on the blog about whether Donald Trump is a disjunctive president. In other words, does he represent the end of a particular party system (the Reagan coalition)? This label comes from the influential work of Stephen Skowronek, who analyzed the presidency in relation to the prevailing party system of the day.

A common theme that links the disjunctive presidents is that their party did poorly in the first set of midterm elections following their own election. This foreshadowed their defeat for reelection two years later. Skowronek identifies four disjunctive presidents (John Quincy Adams, Franklin Pierce, Herbert Hoover, Jimmy Carter). If you examine the midterm elections that followed all of their victories (1826, 1854, 1930, 1978), their parties all did poorly. They did not all lose control of Congress as a result, but the trend was unmistakable.

We'll see how the results in two weeks compare.

UPDATE: As Jack rightly pointed out to me, most Presidents see their party lose seats in their first midterm election. I didn't mean to suggest that only disjunctive presidents see significant party losses in their first midterm election. The point is that no disjunctive president led their party to victory or even just a so-so result in their first midterm election. Consequently, if the GOP gains Senate seats in November (a possibility) and holds the House (also possible), then that would tend to suggest that the collapse of the Reagan coalition is not imminent.
Posted 7:23 AM by Gerard N. Magliocca [link] (17) comments

Our inevitably living Constitution

Sandy Levinson

Posted 9:00 AM by Sandy Levinson [link] (55) comments

Fixation as a Constitutional Rhetoric

Mark Graber

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

Abraham Lincoln’s speeches and writings frequently confirm but sometimes confound the central thesis of Jonathan Gienapp’s magisterial The Second Creation.  Gienapp in that superb study of constitutional language and linguistics details how Americans during the years immediately before, during and immediately after they ratified the Constitution of the United States came to regard constitutions as texts with fixed meanings.  Lincoln before assuming the presidency consistently referred to such a constitution when asserting that the American framers intended to put slavery in “the course of ultimate extinction” and plainly vested Congress with the power to ban human bondage in American territories.  Upon assuming the presidency, Lincoln rejected constitutional fixity,  treating the Constitution as incomplete and mutable.  His first inaugural declared, “But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate, nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the territories? The Constitution does not expressly say. Must Congress protect slavery in the territories? The Constitution does not expressly say.”

Lincoln’s presidential rejection of constitutional fixation stemmed from a change in the purpose of his constitutional arguments rather than an abandonment of his previous understanding concerning the nature of that constitution.  Lincoln’s constitutional arguments before assuming the presidency made assertions about constitutional policy and practice, about how the Constitution of the United States should implemented in particular circumstances.   Such arguments from the 1790s to the present, Gienapp lovingly details, treat the Constitution as a text with a fixed meaning.  Lincoln’s first inaugural made arguments about constitutional authority.  Such arguments routinely assume that the framers did not resolve all constitutional questions in advance, that some entity or combination of entities must be empowered to settle at least temporarily good faith disputes over constitutional meaning.

Arguments over how the Constitution should be implemented in particular circumstances are prone to treat constitutions as texts with fixed meanings.  The point of such arguments is to justify political action or constrain the political action of others.  Authority comes from settled law rather than from personal beliefs about good policy or justice.  Presidents claim they are empowered by the past to engage in military hostilities without a congressional declaration of war.  Supreme Court justices insist the persons responsible for the Constitution empowered them to strike down bans on abortion or handguns.  Persons may base political action on beliefs about good policy or justice in a regime committed to rule by law only when authorized by the past to take such actions.

Constitutional arguments with different purposes are far less prone to treat the Constitution as a text with a fixed meaning.  Historians commonly claim that the framers did not resolve certain disputes.  Social scientists routinely point out how personal beliefs about good policy and justice influence particular constitutional decisions and the path of constitutional development.  Framers designing a constitution must decide between provisions likely capable of only one interpretation that will become part of what Sandy Levinson calls the Constitution of Settlement or provisions whose interpretation will be disputed that will become part of what Sandy Levinson calls the Constitution of Conversation.  Arguments over how constitutional disputes should be settled assume the probability that the words of the Constitution, no matter how much excavation is done to determine their meaning, do not in practice settle all constitutional controversies.

The Second Creation partly details a natural shift in the purpose of constitutional argumentation as well as a greater tendency for Americans to perceive the Constitution of the United States as a text with a fixed meaning.  During the drafting and ratification debates, many central questions concerned whether Americans wanted a constitution whose central provisions had clear fixed meanings.  Federalists preferred to fashion a Constitution of Conversation containing multiple provisions whose import would continually be worked out through a well-structured constitutional politics.  Anti-Federalists preferred a Constitution of Settlement containing only provisions capable of one interpretation.  When explaining why a Constitution of Conversation was superior to a Constitution of Settlement, Federalists unsurprisingly rejected claims that the Constitution of the United States should be a text with fixed meanings.  Once the drafting and ratification debates were over, constitutional argument shifted to implementing the various provisions of the Constitution.  During this debate, Federalists unsurprisingly began treating the Constitution as a text with fixed meanings because persons wishing to claim constitutional authority or constrain rival political actors routinely insist that their claims are rooted in a Constitution framed in the past that, interpreted properly, authorize or forbid such matters as presidential decisions to cashier cabinet members without congressional consent, legislative decisions to establishment a national bank, and congressional involvement in implementing treaties.  Federalists did not necessarily change their beliefs about constitutionalism as much as adjust to a different form of constitutional argument with different constitutional purposes

The English constitutional practice Americans inherited exhibited a similar structure.  Whether the English Constitution had a fixed meaning depended on the purpose of the constitutional argument being made.  Gienapp is right to note the many seventeenth and eighteenth century commentaries do not describe the English constitution as a text with a fixed meaning.  During the upheavals of the seventeenth century, however, prominent royal and parliamentary authorities debating political actions done in the name of the constitution were as committed to constitutional fixation as members of Congress debating the national bank and the Jay Treaty.  Edward Coke and his Parliamentary allies spoke of Magna Carta as provided fixed limits on regal power to tax, imprison and detain.  James I and Charles I were just as adamant that the law of the land placed fixed limits on parliamentary capacity to constrain royal prerogative.

Gienapp’s rich history of American constitutional rhetoric demonstrates that changes in the purposes of constitutional argument cannot explain various attitudes towards the nature of constitutions.  He details how state constitutional arguments before the Constitution of the United States was ratified were far less inclined to treat constitutions as texts with fixed meaning than constitutional arguments after ratification.  Development is clearly taking place, and not just the nature change in the purposes of constitutional argumentation as the focus of constitutional argument shifts from constitutional design to constitutional action.  For this reason, as well as the stunning rich and sophisticated treatment of constitutional argument, The Second Creation belongs which such works as Rakove, Original Meanings in the constitutional canon.

Distinguishing between the purposes of constitutional argument is nevertheless important to the study of American constitutional development.  Lincoln, the English experience and the last fifteen years of the eighteenth century in the United States suggest that what people are doing when they make constitutional arguments matters.  The fixation thesis is far more prevalent when persons make arguments about implementing the Constitution or at times when most constitutional arguments are about implementing the Constitution than when persons make arguments that describe the Constitution, are concerned with constitution design or focus on constitutional authority.  We acknowledge the Constitution of Conversation when describing actual practice, when deciding whether to use general phrases in constitutional texts and when determining who will settle, at least temporarily, a particular constitutional dispute.  When actually engaged in arguments about the meaning of the Constitution of Conversation, we speak as if we are discussing the Constitution of Settlement. 

Lincoln, the English experience and American constitutional politics during and immediately after ratification suggest that constitutions, written constitutions in particular, foster fixation rhetoric, but that fixation is a rhetoric rather than an actual description.  Legal and political rhetoric almost always present as clear what are in fact difficult political choices.  Few participants in the culture wars admit that any moral or legal unclarity exists on such questions as whether women ought to have a right to terminate pregnancies or conservative Christians ought to have a right not to bake wedding cakes for same-sex couples.  That fixation on these matters is rhetoric rather than reality becomes clear only when the purpose of the constitutional or political conversation changes.  Faculty routinely vote with enthusiasm for job candidates whose positions they describe in law review articles as unreasonable.  Most partisans recognize the right of the rival coalitions to enact their constitutional vision into law if they have gained legitimate control of governing institutions.

Gienapp may end his study too early,  Five years after the Jay Treat debate, Thomas Jefferson anticipated Lincoln when acknowledging how the meaning of the Constitution is subject to politics and not fixed in advance.  Jefferson’s first inaugural declared, “During the contest of opinion through which we have passed the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”  Like Lincoln, Jefferson as president did claim authority solely on the ground that his principles were fixed in 1789.  Rather, Jefferson’s and Lincoln’s first inaugurals recognized that not all constitutional issues are settled during the first creation, that some mechanism is necessary for at least temporarily resolving what remains unsettled, and that the possibility exists that such settlements will eventually become unsettled.  Having made those points in their first inaugurals, both Jefferson and Lincoln frequently returned to those constitutional arguments whose purposes require reference to constitutions as texts with fixed meanings. 

The problem with the constitutional rhetoric of fixation has little to do with the interpretive struggles between originalists of all stripes, living constitutionalists and those who claim to practice both simultaneously.  Legal confidence is a feature of legal practice.  We teach our law students to express with unwavering certainty that the Constitution compels the justices to strike down bans on abortion or handguns, just as we train them to assert with unwavering confidence that justice demands a guilty verdict in any criminal case they prosecute.  The danger occurs only, in the absence of a Lincoln or a Jefferson, citizens take that rhetoric seriously and actually regard their political and legal rivals as usurpers rather than persons engaged in good faith debate over how to interpret a constitution that does not actually provide fixed answers to all constitutional questions.

Posted 9:00 AM by Mark Graber [link]

The Invention of the Archival Constitution

Guest Blogger

Alison L. LaCroix

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

            Among the many achievements of Jonathan Gienapp’s Second Creation is the book’s elegant and decisive dismantling of many tidy just-so stories that constitutional law scholars tend to tell themselves about the period between 1787 and 1796.

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Training Academies and the Rule of Law

Richard Primus

Here's a report recently out in The New York Times about a training academy for law clerks, run by the Heritage Foundation:

https://www.nytimes.com/2018/10/18/us/politics/heritage-foundation-clerks-judges-training.html



Posted 3:39 PM by Richard Primus [link]