The Regulatory Review

Reducing Surprise From Out-of-Network Bills

Thu, 24 Sep 2020 04:05:26 GMT

While Kelly Kyanko was in labor, her doctors became concerned about potential complications for her child and called a pediatrician. Kyanko had no idea that merely calling in a pediatrician would add an extra $600 to her hospital bill.

Surprise medical bills occur when patients choose hospitals and doctors contracted with their insurance network but learn after the procedure that they were treated by an out-of-network specialist. This out-of-network specialist is often an anesthesiologist, radiologist, or neonatologist called to assist with the service. Patients may also receive care from providers who are not contracted with their insurance company when there is an emergency and either the ambulance or its hospital destination is out of network.

Scholars caution that, when out-of-network providers give care, they can bill at rates above what they would charge if they were contracted with a health plan. To their dismay, patients are left paying the difference between the provider’s fee and the amount that their insurance will cover.

In a recent report, a group of researchers from the University of Southern California (USC) and the Brookings Institution argue that states need to address these surprise out-of-network bills by creating “billing regulations” that limit what out-of-network practitioners can charge patients.

States could also establish “contracting regulations” to prohibit providers from being out of network when the facility they work at has a contract with the health plan, according to the USC-Brookings team.

These billing and contracting standards are needed because emergency physicians and supporting health care professionals do not have incentives to contract with health plans.

When health care providers contract with insurance plans, the providers agree to charge lower fees and the insurance company agrees to direct its enrollees to the provider’s practice. But because patients do not have the option during an emergency to choose another provider, emergency room physicians and supporting health care professionals are often able to maintain a high volume of patients without contracting with health plans and lowering their fees.

The authors of the USC-Brookings report describe a case in which out-of-network emergency care physicians billed an insurance company for a treatment at almost 800 percent of the Medicare rate.

To reduce the financial benefits providers receive from being out of network and prevent patients from receiving expensive “surprise” bills, the authors of the USC-Brookings report recommend that states use Medicare rates as a basis for determining limits on out-of-network fees. According to the report, “Medicare rates are reasonable, if imperfect, estimates of the relative cost of providing various services.”

But Medicare rates are still typically lower than the commercial cost of the service, so states should set limits no less than 125 percent of the Medicare rate for each service, taking into account state or local market conditions, the report’s authors recommend.

If the capped fee is still greater than what patients pay for the service as part of their usual in-network costs, state regulations could also require health plans to pay the difference. The report’s authors recognize that federal law prevents states from applying this aspect of the regulation to self-insured plans where the employer pays for each individual claim. But states could still require fully-insured health plans—plans where the employer pays a fixed rate to cover all claims—to cover the difference between the out-of-network fee and the patient’s in-network costs, the USC-Brookings team argues.

States could also adopt a regulation that prevents patients from being treated by out-of-network providers when they are being treated at a facility that is in network—what the report refers to as a “contracting regulation.”

State contracting regulations would prevent out-of-network emergency care practitioners and supporting health care professionals from independently billing patients or insurance companies when a facility itself is in network. Following the report’s proposal, insurance companies would pay facilities in-network rates for all services, including those services provided by out-of-network practitioners. The facilities would then pay the health care providers directly to avoid patients or insurance companies receiving bills for out-of-network care at an in-network facility.

Under this proposed regulatory framework, contracting regulations would govern out-of-network providers working in facilities that are contracted with the health plan. In cases where the entire facility is out of network, a billing regulation would apply instead of the contracting limits.

The authors of the USC-Brookings report recognize that existing state and federal legislation could impede the adoption of their recommended regulatory proposals. For example, two federal laws—the Stark Law and the Anti-Kickback Statute—restrict payments between physicians and hospitals that refer patients to each other.

The authors of the report argue that these federal laws should not apply if states decide to require all billing to be performed by the hospital or require all providers to be in network.

At the state level, laws may prevent health care facilities from directly employing practitioners. Other laws may hold hospitals responsible for errors made by physicians when the physicians do not bill independently from the facility.

As a result, states may need to modify their laws to allow for billing and contracting regulations. “If not addressed, these types of state laws could frustrate approaches to address surprise out-of-network billing,” the report concludes.

Improving Canada’s Anti-Corruption Practices

Wed, 23 Sep 2020 04:05:34 GMT

Last fall, a whistleblower accused President Donald J. Trump of committing bribery. In response, the President suggested that the whistleblower might be guilty of treason—a crime technically punishable by death in the United States.

To date, the identity of the whistleblower has not been publicly confirmed—despite revelations of the alleged whistleblower’s name in a variety of forums. But a whistleblower in Canada might be even less fortunate. Although Canada ranks highly on anti-corruption metrics, its whistleblower laws leave much to be desired, argues Siavash Vatanchi, the author of a recent law journal article. Vatanchi, a recent law graduate of Western University, urges Canadian lawmakers to improve existing protections and to extend those protections to private sector employees.

He argues that Canada could improve its laws by creating a nationwide regulation that protects public and private sector employees equally. He recommends that the government adopt a reverse burden of proof provision that would make it easier for whistleblowers to protect themselves through harassment and retaliation lawsuits. He also suggests that the use of financial incentives for private-sector whistleblowers could encourage people to come forward who would not otherwise do so.

Vatanchi argues that the need for these proposed reforms is revealed in the flaws in current law.

For example, Canada’s criminal code provides that employers could face criminal sanctions if they retaliate against employees who report illegal activity to law enforcement officers. But Vatanchi argues that this code does little to protect whistleblowers because courts have made the process of obtaining protection under it burdensome.

Canadian courts have required private-sector whistleblowers first to exhaust all internal whistleblowing mechanisms before going public. If the company refuses to act, the employee may then go public with the information. The issue Vatanchi has with this requirement is that the criminal code only protects whistleblowers who are retaliated against after reporting to law enforcement officials. Thus, private-sector employees may be legally terminated by going through the steps required to receive the only protection available to them.

On the other hand, public-sector employees are protected from retaliation from the moment they bring attention to people “up the ladder.” This disparity leads Vatanchi to conclude that Canada needs a uniform system protecting private-sector and public-sector employees equally. In addition, he argues that a uniform standard would encourage more people in both sectors with valuable information to come forward as it would be clearer when legal protections apply.

In addition, Vatanchi suggests that the government adopt a reverse burden of proof provision in the law that would ensure that the protections for potential whistleblowers are legitimate. He argues that it would be easier for employees to bring and succeed on retaliation claims if employers bore the burden of showing that they did not retaliate. Thus, he suggests that such a provision would make employees feel confident enough in their security to come forward with information.

Vatanchi argues that, after providing adequate protections to both public and private-sector employees, the Canadian government should go a step further and actually provide positive incentives for whistleblowers to come forward.

He explains that in the private sector, the people who may have the most valuable knowledge are often those who have the most to lose. High-paid executives and board members might not see the benefit of coming forward as worth the cost of their high salaries. Although they would be legally protected from retaliation, whistleblowing opens these individuals up to reputational attacks and potential black-balling, Vatanchi explains.

Vatanchi recommends that the government supplies financial incentives that would provide private-sector employees with enough of a cushion to feel comfortable coming forward. He suggests that the government could give whistleblowers a portion of the fines levied against companies to make up for the cost of coming forward. In addition, he suggests that a system could be set up that would help whistleblowers with legal fees to ensure they can protect themselves against retaliation when necessary.

But Vatanchi recognizes the potential for abuse in such a system. He advocates requirements of a minimum penalty to be levied by the government before any rewards are paid out as a means to deter petty or insignificant complaints.

Vatanchi hopes that Canada will continue to be a leader in anti-corruption. He argues that Canada’s commitment to combatting corruption will be enhanced by adopting the proposed changes to whistleblower law. In addition to protecting the public interest by encouraging more individuals to expose corruption, new whistleblower laws could also result in better corporate governance, Vatanchi argues. In turn, the laws could make it so that corrupt activities never happen in the first place.

The Business of Education

Tue, 22 Sep 2020 04:05:12 GMT

People rarely associate education reform with the business world. State and local governments have traditionally held the reins, with varying levels of input from the federal government. Therefore, it may be surprising to learn that this country’s most consequential education reforms over the past half century have closely tracked regulatory trends in the private sector.

In a recent paper, Stephen Sugarman of the University of California, Berkeley, School of Law traces the progression over the past half century of five regulatory strategies for education, which he asserts mirrored contemporaneous business reform approaches in the broader U.S. marketplace.

Sugarman analogizes the historic lack of equal educational opportunity for many students to “market failures” in the business world that require corrective regulatory action. Education reforms, when successful, can correct these failures and yield positive results, such as a more highly skilled workforce and a better-informed populace.

Sugarman begins his analysis with the “adversarial legalism” approach, which in the 1960s shifted power from local school boards to judges to end racial segregation in U.S. schools. Empowered by Brown v. Board of Education, reformers brought lawsuits seeking “equal educational opportunity” for Black students.

Without subsequent political enactments to change practices, however, courts became less useful regulatory tools in education. A judge could order desegregation, but courts could do little to noncompliant schools other than shut them down, a result that, of course, would have harmed the students the orders were meant to serve. Sugarman notes that housing policy reformers saw a similar combination of “limited judicial reach and reduced judicial reception” to their claims, which doomed adversarial legalism in the housing industry.

As tensions between parents and local school boards rose, Congress shifted power to education policy bureaucrats, Sugarman writes. The idea behind this “command-and-control” approach was that government-employed professionals knew how best to serve the public interest. These agency-backed bureaucrats employed “sticks”—direct demands on regulated entities—and “carrots”—conditions attached to monetary provisions for regulated entities.

In education, federal and state officials gave categorical grants to local schools—the carrots—conditioned on those schools improving outcomes for racial minorities, low-income students, and special education students—the sticks. In 1965, Title I of the Elementary and Secondary Education Act provided increased aid to low-income students, but legislators attached elaborate accounting and reporting requirements to ensure the funds reached those students. Noncompliant schools could lose funding if they failed to accommodate these students.

This change happened just as food stamps, Medicaid, and other government programs shifted from command-and-control systems in which the government controlled the means of distribution of goods and services to systems in which consumer-citizens were empowered to use their government-provided funds to buy those same goods and services from businesses.

This market-oriented “choice” model exploded in the education sphere with the rise of charter schools—which Sugarman describes as private schools receiving public funds. Often run by private non-profits, charters can contract with for-profit school management organizations to serve their students.

Sugarman writes that, while relatively freer from the command-and-control constraints of traditional public schools, many charters have suffered from mismanagement and sometimes outright fraud, given their reduced oversight and often ambiguous testing criteria. Moreover, Sugarman notes that research does not clearly establish that competition from charters consistently makes public schools improve.

Sugarman then outlines the early 2000s approach of “outcome-based” regulations in which private industry was required to meet federally determined government objectives. Given the unintended negatives of unchecked market-based competition, regulators sought to encourage efficiency without constraining the private sector. For example, to slow climate change, governments required firms to obtain permits to emit CO2 while also limiting the number of permits available. This scarcity motivated companies to find creative solutions to reduce their emissions without sacrificing profitability, Sugarman asserts.

Meanwhile, in the education sector, the George W. Bush Administration in 2001 introduced No Child Left Behind (NCLB), a law that required improved student outcomes but allowed local officials to determine the means to achieve those results. For example, many low-income schools had to meet annual improvement standards to reduce the gap between pupil outcomes across racial and socioeconomic groups.

NCLB seemed like a viable bipartisan initiative that could work, but testing issues and other irregularities plagued its administration, according to Sugarman. He presents NCLB as a cautionary tale to businesses using outcome-based measures, warning that unless the right outcome “can be defined, measured, and not seriously scammed,” failure is certain.

Sugarman lastly considers “management-based” regulations that emphasize both procedure and outcomes. Sugarman describes the U.S. Food and Drug Administration’s 2011 Food Safety Modernization Act, which requires food processors to adopt their own food safety plan and document their compliance with that plan, with input from third-party auditors. Visiting federal inspectors can offer further suggestions, but the food processors decide how to fix any issues.

Sugarman cites California as an example of a jurisdiction that employed a management-based education strategy. California in 2014 shifted from a basically uniform per pupil funding structure coupled with large state and federal categorical grants to a state funding structure that gave additional weight to English language learners, low-income students, and students in foster care. Schools receiving increased funding must adopt three-year accountability plans showing how they will improve outcomes for these students, Sugarman explains. These accountability plans must address a minimum of eight general goals, with execution left to “local control.” Due to the program’s novelty, Sugarman notes that definitive conclusions about its effectiveness should only be drawn after more time has passed.

Even though many of the problems animating these reform movements persist, Sugarman views the reinvestment of local authorities with some power—subject to state and federal checks—as a good sign. He suggests, however, that realities like high income inequality might continue to hamper reform efforts, and he notes the added challenges reformers may face with the proliferation of virtual instruction.

Sugarman expects that whatever new regulatory approaches arise in education will mirror strategies being used in other sectors of the economy.

Abortion Regulation in the Age of COVID-19

Mon, 21 Sep 2020 04:07:24 GMT

The gendered dimensions of the political response to the COVID-19 crisis are manifesting clearly in efforts to close abortion clinics, as well as in campaigns led by doctors, lawyers, and reproductive rights advocates to expand access to telemedicine abortion during the pandemic and beyond.

Anti-abortion politicians in states across the country have used the COVID-19 pandemic to attempt to restrict abortion, arguing that abortion is not essential health care and that banning the procedure will conserve personal protective equipment for COVID-19 cases. In March and April of 2020, 12 states tried to restrict abortion, including Alaska, Iowa, Louisiana, Mississippi, and West Virginia, among others. Legislators in Kentucky passed a bill to allow the state’s Attorney General to block abortion access during COVID-19, but the Kentucky governor vetoed the bill.

Advocates for abortion rights have condemned these actions and sued to keep clinics open. The National Abortion Federation, a professional association of abortion providers, issued a statement declaring that abortion care is an essential health service and that “denying or deferring abortion care places an immediate burden on patients, their families, and the health system, and can have profound and lasting consequences.” The Center for Reproductive Rights, the American Civil Liberties Union, and clinics in states with abortion bans have brought legal challenges to protect abortion access during the pandemic.

In response, courts have blocked the bans in Alabama, Ohio, Oklahoma, and Tennessee. In Louisiana, the state lifted the ban after clinics sued. Texas finally lifted its ban on April 22 after multiple court decisions see-sawed back and forth for weeks, forcing pregnant people to travel hundreds of miles to other states to obtain abortion care.

But restrictions prevailed in some states. The U.S. Court of Appeals for the Eighth Circuit upheld an abortion ban in Arkansas, although the Arkansas Department of Health later issued a directive permitting providers to resume elective procedures. Bans—some of which were lifted or have since expired—have not been challenged in Alaska, Indiana, and Mississippi, whereas a clinic in West Virginia challenged a ban in the state, which the Governor later lifted.

In addition to filing lawsuits challenging the bans, abortion advocates are calling for greater access to telemedicine abortion to provide safe, accessible, socially distant abortion health care.

Telemedicine abortion combines medication abortion—which uses pills to end a pregnancy—and telemedicine—which allows providers to supervise the use of abortion pills through videoconferencing or telephone consultations. Approved by the U.S. Food and Drug Administration (FDA) for use during the first 10 weeks of pregnancy, medication abortion uses two types of pills: mifepristone, which interrupts the flow of the hormone progesterone that sustains the pregnancy, and misoprostol, which causes contractions. Misoprostol alone, or in combination with mifepristone, is an extremely safe way to end a pregnancy in the first 12 weeks of gestation. According to the Guttmacher Institute, medication abortion accounted for approximately 40 percent of all recorded abortions and 60 percent of abortions performed up to 10 weeks’ gestation in 2017. The actual rate is likely higher because of the growing number of people who are self-managing their abortions using medication purchased on the internet or obtained in other ways.

The growth in the use of medication abortion has dovetailed with expansion of telehealth to provide new opportunities for pregnant people to access abortion in a safe and private way. As abortion restrictions have increased over the last several years and harassment of people entering health clinics persists—even during the COVID-19 crisis—pregnant people are increasingly turning to medication abortion and telehealth to increase their safety and privacy when obtaining abortion care. Reproductive health advocacy organizations, such as Aid Access, Plan C, and the Self-managed Abortion; Safe and Supported Project, provide pregnant people with information and support on how to use abortion pills safely, especially with the recent proliferation of abortion bans in conservative states.

Nevertheless, numerous legal and regulatory barriers limit the reach of telehealth abortion. Many states prohibit patient access to the abortion pill through telemedicine, despite the pill’s proven safety and efficacy. Eighteen states currently require the prescribing clinician to be physically present when prescribing the abortion pill. Thirty-two states require the clinician prescribing the abortion pill to be a physician.

Another significant barrier to telemedicine abortion is that FDA restricts the distribution of mifepristone. When FDA initially approved the drug in 2000, the agency blocked easy access to the pill using its Risk Evaluation and Mitigation Strategies (REMS) due to pressure from anti-abortion forces. REMS is a drug safety program that allows FDA to restrict the circulation of certain medications with serious safety concerns to help ensure that the benefits of the medication outweigh its risks. Under the REMS program, mifepristone must be dispensed in person at a clinic, medical office, or hospital under the supervision of a health care provider registered with the drug manufacturer.

In light of COVID-19 and the need for social distancing, advocates are challenging FDA’s REMS restriction on the abortion pill. On March 30, California Attorney General Xavier Becerra sent a strongly-worded letter to the U.S. Department of Health and Human Services and FDA, urging the Trump Administration to waive or use its discretion on enforcement of its REMS designation.

“Forcing women to unnecessarily seek in-person reproductive health care during this public health crisis is foolish and irresponsible,” Attorney General Becerra stated at a press conference. “That is why we are calling on the Trump Administration to remove red tape that makes it more difficult for women to access the medication abortion prescription drug.”

On the same day, New York Attorney General Letitia James spoke out in favor of removing the FDA restriction on mifepristone. “Control over one’s reproductive freedom should not be limited to those able to leave their homes as we battle the coronavirus,” Attorney General James said. She highlighted that a coalition of state attorneys general “is calling on the federal government to make mifepristone more easily accessible so that no woman is forced to risk her health while exercising her constitutional right to an abortion.”

Reproductive health groups are also pressuring the government to remove the REMS restriction on the abortion pill. The National Women’s Health Network, for example, created a petition and social media campaign with the slogan, “Get the pill where you take the pill—at home!”

In addition to lobbying FDA, medical providers and advocates are filing lawsuits to remove the REMS restriction on mifepristone. On May 27, the American College of Obstetricians and Gynecologists (ACOG) filed a lawsuit challenging the FDA restriction. Joined by the Council of University Chairs of Obstetrics and Gynecology, the New York Academy of Family Physicians, and SisterSong, ACOG is asking a federal district court to order FDA to lift the REMS restriction on mifepristone during the COVID-19 crisis.

In July, Judge Theodore Chuang of the U.S. District Court for the District of Maryland issued a decision temporarily suspending enforcement of FDA’s restriction on the abortion pill, ruling the FDA requirement of in-person visits during the pandemic imposes a “substantial obstacle” to abortion health care that is likely unconstitutional. Judge Chuang’s order allowed patients to receive mifepristone from their doctors through the mail. The Trump Administration asked the district court, and then the U.S. Court of Appeals for the Fourth Circuit, to reinstate the in-person requirements while FDA appeals the decision, but both courts rejected the Administration’s request. The Administration has now taken its request to the U.S. Supreme Court.

Some reproductive health advocacy organizations have also promoted self-managed abortion, a process by which people order abortion pills online and use them independently of any direct medical supervision. Plan C maintains an updated list of safe websites from which to order abortion pills and also has information about how to self-manage abortion safely using the pills. Although self-managing abortion involves some legal risks, for many people it might be safer than traveling long distances to access abortion health care or risking further delay in securing an abortion.

Research shows that self-managed abortion has increased during the coronavirus, especially in conservative states that have enacted restrictions on abortion. The legal advocacy organization If/When/How has a new campaign and an online petition pushing for the decriminalization of self-managed abortion, which the organization argues is critical during the coronavirus epidemic. In a campaign fact sheet on self-managing abortion during the COVID-19 crisis, If/When/How argues that “during times of heightened societal fear, overzealous police, prosecutors, and anti-abortion politicians may— more than usual—rely on a racist, classist criminal legal system to punish people for their pregnancy outcomes.” The group also expresses concern that international postal delivery and transit across international borders could be slowed, interrupted, or suspended as countries around the world enact safety measures, affecting the distribution of abortion medication.

Another way to increase abortion access during the pandemic, as well as afterwards, is to expand a research exception to the REMS restriction. Since 2016, the women’s reproductive health care organization Gynuity has operated a research study on telemedicine abortion, TelAbortion, which allows clinicians participating in the study to provide medication abortion care by videoconference and mail without an in-person visit. The study is currently running in Washington, D.C. and 13 states, including Hawaii, Washington, and Oregon, among others. This study has shown that telemedicine abortion is safe and effective. Advocates are working to expand the TelAbortion program to more states.

Both advocates for and opponents of abortion have used the COVID-19 crisis as an opportunity to advance their political agendas. Although anti-abortion politicians have tried to ban abortion as a non-essential medical procedure, women’s health advocates have pressed for increased access to the abortion pill and telemedicine abortion.

These abortion policies have gendered impacts. Restrictions on abortion impose on female, transgender, and nonbinary people unwanted pregnancies and medical risks, especially during a pandemic, while removing these restrictions frees pregnant people from the burdens, costs, and risks of unwanted pregnancy and parenthood during dire economic times.

Reflecting on RBG’s Legacy

Mon, 21 Sep 2020 04:03:11 GMT

The legal profession, the United States, and the world has lost a hero with the passing of Justice Ruth Bader Ginsburg. Known for her leadership in championing gender equality, her passionate dissents, and her steadfast commitment to the principle of equality before the law, Justice Ginsburg profoundly influenced and shaped U.S. constitutional law. Her judicial opinions revealed her unending fight for justice and illuminated her faith in what the United States could be for every person. She inspired generations of young law students with her eloquent prose, sharp analytic reasoning, and continued awareness of how laws impact the most vulnerable among us. In her own life, Justice Ginsburg succeeded in breaking through many barriers to equality—and she dedicated her career as a lawyer, judge, and Justice to breaking down barriers for others. We join with the rest of the United States in mourning the loss of Justice Ginsburg. To honor her memory, The Regulatory Review presents quotations from some of her most significant opinions.

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. So long as this Court adheres to Roe v. Wade, and Planned Parenthood v. Casey, targeted regulation of abortion providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” cannot survive judicial inspection.

– Concurring in Whole Woman’s Health v. Hellerstedt (2016)

A would-be polluter may or may not be dissuaded by the existence of a remedy on the books, but a defendant once hit in its pocketbook will surely think twice before polluting again.

– Writing for the Court in Friends of the Earth v. Laidlaw Environmental Services (1999)

As I see it, in relatively recent years, the Court’s Arbitration Act decisions have taken many wrong turns. Yet, even accepting the Court’s decisions as they are, nothing compels the destructive result the Court reaches today … Even assuming that the Federal Arbitration Act (FAA) and the National Labor Relations Act (NLRA) were inharmonious, the NLRA should control. Enacted later in time, the NLRA should qualify as “an implied repeal” of the FAA, to the extent of any genuine conflict. Moreover, the NLRA should prevail as the more pinpointed, subject-matter specific legislation, given that it speaks directly to group action by employees to improve the terms and conditions of their employment … The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.

– Dissenting in Epic Systems Corp. v. Lewis (2017)

Institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. … Confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.

– Writing for the Court in Olmstead v. L.C. (1999)

Congress never intended to immunize forever discriminatory pay differentials unchallenged within 180 days of their adoption. … This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. Once again, the ball is in Congress’s court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.

– Dissenting in Ledbetter v. Goodyear Tire and Rubber Co. (2007)

It is on behalf of … women that the United States has instituted this suit, and it is for them that a remedy must be crafted, a remedy that will end their exclusion from a state-supplied educational opportunity for which they are fit, a decree that will “bar like discrimination in the future.” … Women seeking and fit for a VMI-quality education cannot be offered anything less. … A prime part of the history of our Constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of “We the People” expanded.

– Writing for the Court in United States v. Virginia (1996)

Volumes of evidence supported Congress’s determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

– Dissenting in Shelby County v. Holder (2013)

States, of course, may regulate within the domain Congress assigned to them even when their laws incidentally affect areas within the Federal Energy Regulatory Commission’s domain. But states may not seek to achieve ends, however legitimate, through regulatory means that intrude on FERC’s authority over interstate wholesale rates, as Maryland has done here.

– Writing for the Court in Hughes v. Talen Energy Marketing (2016)

Would the exemption the Court holds Religious Freedom Restoration Act (RFRA) demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? … There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” The Court, I fear, has ventured into a minefield by its immoderate reading of RFRA.

– Dissenting in Burwell v. Hobby Lobby (2014)

It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals. … From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.

– Concurring in Grutter v. Bollinger (2003)

Encouraging Living Kidney Donations

Sat, 19 Sep 2020 04:05:10 GMT

Every year, 126,000 people in the United States are diagnosed with end-stage renal disease (ESRD), which requires dialysis or a kidney transplant as treatment. About 43,000 of these patients will die prematurely because they cannot get a transplant.

Dialysis typically gives an ESRD patient only five more years of life, but a transplant from a living donor generally increases life expectancy by 12 to 20 years. Although kidney transplants could benefit 50 percent of patients diagnosed with ESRD—extending the lives of 63,000 people per year—only about a third of those patients receive new kidneys annually. Experts predict that present numbers of deceased kidney donations will not increase substantially, making expansion of living donor transplants the only practicable solution to ending the kidney shortage.

The 1984 National Organ Transplant Act (NOTA) governs living kidney donation at the federal level. This law, along with the U.S. Department of Health and Human Services’s accompanying regulation, created the Organ Procurement and Transplantation Network, which maintains “a national system for the uniform matching of organs with potential recipients.”

NOTA bans the trade of “any human organ for valuable consideration,” criminalizing the sale of organs for transplantation. Although some scholars argue that the ban contributes to the kidney shortage, others caution that legalization would lead to exploitation and coercion of donors.

Advocates of living donation claim that the relative ease of donating a living kidney warrants revisions to the NOTA ban. These advocates emphasize that a donor’s remaining kidney compensates for the one lost and that donors need only make minor lifestyle changes after the procedure. Most laparoscopic surgeries, the preferred operation for donating kidneys, involve small incisions, require short recovery times, and have less than a 1 percent fatality rate.

This week’s Saturday Seminar highlights proposals to encourage living kidney donations.

Racial Inequality

In a paper published in the American Journal of Nephrology, Kimberly Harding of Monarch Innovation Partners and several coauthors explain the health disparities that African Americans experience in ESRD and kidney transplantation. They note that African Americans are overrepresented on kidney waiting lists, wait longer for a transplant than white Americans, and have less access to living donor kidneys. Harding’s team advocates policy interventions for culturally sensitive patient education about living kidney donation, “health insurance benefits that cover the costs of transplant-related immunosuppressant medications for life,” and elimination of the out-of-pocket costs associated with living donation.

Kidney Chains and Vouchers

In an article published in the Journal of Health and Biomedical Law, Albany Law School’s Evelyn M. Tenenbaum contends that kidney voucher programs are a “binding contract that can be enforced by the courts.” A kidney voucher program is an asynchronous trade in which a donor gives a kidney in exchange for a voucher that allows the named recipient to “obtain a live donor kidney at the optimal time,” even if the optimal time is years later. Tenenbaum argues that voucher programs are enforceable once the donation occurs because the agreements are unilateral contracts, a type of agreement that is binding once people perform the action that they promised. According to Tenenbaum, recognizing kidney vouchers as enforceable contracts will reassure donors, who must trust that the vouchers will be honored for the program to operate effectively.
NOTA should be amended to allow payments to some kidney donors, William and Mary Law School’s Nathan B. Oman argues in a Law and Contemporary Problems article. He proposes allowing financial compensation for initial donors in a type of exchange called a non-simultaneous extended altruistic donation (NEAD). A NEAD chain is an extended string of kidney transplants that connects a series of prospective donors. If, for example, donor A wishes to give a kidney to incompatible recipient A, a NEAD chain can connect recipient A with donor B or donor C, who also wishes to give a kidney to a recipient who is not a compatible match. Donor A, however, could be a match with recipient B, and donor B may be a match with recipient C, and so on. Importantly, the first donor on a NEAD chain does not desire or expect to receive a kidney in exchange for the donation. The current prohibition on cash incentives, Oman argues, limits the number of potential altruistic donors who would start a NEAD chain. He claims that allowing payment for these initial donors would “increase the number of life-saving transplants without creating a full-fledged market in human organs.”

Benefits for Donors

In an essay in The Regulatory Review, Damini Kunwar, a recent graduate of the University of Pennsylvania Law School, analyzes a proposed rule from 2019 by the Health Resources and Services Administration. Aiming to increase living organ donation by reducing financial barriers, the proposal would expand reimbursement of living donors’ expenses to include costs such as lost wages and childcare. Opportunities for the public to submit comments on the proposed rule closed in February 2020, but the agency has not yet issued a final rule.
In a recent episode of the Taboo Trades podcast, Kimberly D. Krawiec of Duke University School of Law discusses advocacy for living kidney donors with Waitlist Zero’s Josh Morrison. Morrison argues that a public service model is the best way to increase kidney donation. He proposes giving living organ donors a benefit analogous to the G.I. Bill by offering benefits such as lifetime health insurance and an annual stipend. Morrison contends that this model could provide incentives to donors without commodifying people through a direct exchange.
Should a federal tax credit exist to prompt organ donations? In a recent article published in Tax Notes, Sally Satel and Alan D. Viard of the American Enterprise Institute propose a federal tax credit of $50,000 for living donors and $5,000 for deceased donors. They argue that such a credit could encourage donation and reduce government expenditures by up to $10 billion annually. Although critics contend that a tax credit “commodifies the body,” Satel and Viard suggest that financial recognition would be a more universal public policy solution that could prompt organ donation and affirm donors with dignity for “contributing to the public good.”

Direct Compensation for Donors

The United States should establish a regulated “living kidney vendor program” through which the government can buy and sell kidneys, argues Kristine D. Kuenzli of the United States Air Force Academy in an article in the Journal of Law and Commerce. Kuenzli proposes repealing the provisions of NOTA that prohibit organ purchases to enable the government to make payments for kidneys. “Kidneys should be the exception to NOTA because of the biological realities of the kidney,” she argues, noting that people can function normally with just one kidney. In addition to the need for government control of the proposed donor system, Kuenzli outlines other essential regulations, including a government-set price for kidneys and a minimum age requirement to donate.
In a recent article published by the Osgoode Hall Law Journal, Nicola Lacetera of the University of Toronto discusses the ethics of financial incentives in markets for organs, blood, and other body parts and the balance between economic efficiency and morality in these transactions. In a survey of about 3,000 people, Lacetera found that 50 percent of participants initially supported payments for donations, a proportion that increased to 70 percent when participants were informed that permitting monetary compensation for donors could facilitate a significant increase in transplants. Lacetera cautions, however, that continued research is necessary to inform policymakers on how to increase organ donation in ways that are morally palatable to the public.

Week in Review

Fri, 18 Sep 2020 04:05:59 GMT

IN THE NEWS

The Trump Administration released a plan for COVID-19 vaccine distribution. The plan includes measures to encourage vaccine uptake, expedite the approval and safe administration of a vaccine, and implement a system to track distribution. Robert Redfield, director of the Centers for Disease Control and Prevention, stated that he does not expect a vaccine to be available for wide distribution until at least the middle of 2021. President Donald J. Trump, however, later asserted that Redfield was mistaken, and a vaccine would be widely distributed before the end of 2020. Michael Ryan, executive director of the World Health Organization’s health emergencies program, emphasized the importance of consistent messaging from top officials.
A federal district court held that certain provisions of Pennsylvania Governor Tom Wolf’s coronavirus mitigation orders are unconstitutional. The court found that limiting the number of people that can gather in one place violates the constitutional right of assembly and that the stay-at-home order and business closure requirement violated the Constitution’s Equal Protection and Due Process Clauses. The court emphasized that crisis responses “can never be permitted to supersede” individual liberties. In contrast, the U.S. Supreme Court wrote in May that it was “quite improbable” that a California order restricting the size of public gatherings was unconstitutional. The Wolf Administration will seek a temporary block on the decision while they file an appeal.
A federal judge blocked the U.S. Department of Homeland Security from enforcing a series of rules narrowing the criteria for asylum applicants to receive work authorization. The rules sought to overhaul a system that authorizes asylum seekers to find employment as they await a decision on their asylum applications. In addition to blocking the agency from enforcing this package of rules, the judge also held that the appointment of Homeland Security Acting Secretary Chad Wolf was likely to be found invalid, echoing the findings of a U.S. Government Accountability Office report from August. New York Attorney General Letitia James celebrated the decision, referring to Wolf as one of the Trump Administration’s “lapdog appointees” who has “no authority and no business sitting in the chair of the acting secretary of Homeland Security.”
The United Kingdom’s Medicines Health Regulatory Authority confirmed that pharmaceutical company AstraZeneca has resumed clinical trials of University of Oxford’s coronavirus vaccine following an investigation into a previous participant’s illness during the trial. AstraZeneca has remained tight lipped about the participant’s illness while emphasizing its commitment to industry and regulatory safety standards. U.S. Food and Drug Administration Commissioner Stephen Hahn reportedly said that clinical trials for the vaccine will not resume in the United States until the agency completes an investigation.
President Donald J. Trump issued an executive order directing the U.S. Department of Health and Human Services to create regulations ensuring that Medicare will not pay pharmaceutical companies more for certain prescription drugs than the lowest prices paid in certain other countries. The order replaces an earlier executive order in light of the Trump Administration’s failure to negotiate a deal with drug manufacturers. Stephen Ubl, president and CEO of Pharmaceutical Research and Manufacturers of America—a drug lobbying group—critiqued the new order as “an irresponsible and unworkable policy” because it relies on how other countries set drug prices. Other experts do not foresee the order having an immediate impact.
The U.S. Court of Appeals for the Eleventh Circuit upheld a Florida law that requires people with felony convictions to pay all court fines and fees before their voting rights may be restored. In 2018, Floridians voted to amend the state constitution to restore voting rights to certain people with felony convictions. The Florida legislature then passed a bill conditioning the right to vote on the completion of all criminal sentences, including the payment of fines and fees, which plaintiffs challenged in this lawsuit on the basis that the requirements violate the Twenty-Fourth Amendment. Julie Ebenstein, senior attorney with the American Civil Liberties Union, said that “this ruling runs counter to the foundational principle that Americans do not have to pay to vote.”
In a 2-1 decision, the U.S. Court of Appeals for the Ninth Circuit upheld the Trump Administration’s action to end Temporary Protected Status for more than 400,000 people who immigrated from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan without documentation. Temporary Protected Status had prevented these undocumented immigrants from being deported to countries that the Homeland Security secretary determined were “unable to handle the return of nationals adequately” due to conditions such as armed conflict and environmental disasters. The court found that the Homeland Security secretary has broad discretion, rejecting the argument that the decisions were improperly motivated by the President’s “animus against non-white and non-European immigrants.”
The U.S. Customs and Border Patrol blocked shipments of imports from the Xinjiang region of China, which has received international scrutiny as the location of numerous internment camps for the region’s ethnic Muslim minority population. In a press release, the U.S. Department of Homeland Security said that the blocked shipments contained goods that had been produced through forced labor and that Customs and Border Patrol would continue to block similar products in the future. Acting Homeland Security Deputy Secretary Ken Cuccinelli called the forced labor practices occurring in Xinjiang “a type of modern slavery” and vowed to “protect American citizens from participating in these egregious human rights violations.”
The U.S. Environmental Protection Agency (EPA) finalized a rule establishing procedures to issue guidance documents in an effort to increase transparency. The rule establishes a formal petition process for public requests to modify or withdraw EPA guidance documents and requires methods for public participation in the development of guidance documents. President Donald J. Trump signed an executive order in October 2019 that required EPA and other government agencies to promote transparency through better publicization of guidance documents. EPA Administrator Andrew Wheeler emphasized the significance of the rule and said that “for the first time ever, EPA is proposing a rule that codifies procedures to ensure the public can engage in the development and review of agency guidance,” adding that the rule ensures “that EPA is not creating new regulatory obligations through guidance.”

WHAT WE’RE READING THIS WEEK

In an article in the William and Mary Law Review, David Zaring, a professor of legal studies and business ethics at the Wharton School, contributed to an ongoing debate around reforming bank charters, which are required licenses granted by the Office of the Comptroller of the Currency. Zaring explained that two main camps have emerged in the debate. On one side, academics contend that bank charters should be granted sparingly to protect the public. In contrast, regulators at the Office of the Comptroller of the Currency have begun to broaden the eligibility criteria to include financial technology companies in addition to traditional banks. Zaring concluded that the office should embrace a “special purpose fintech charter” to account for the growth of financial technology companies while creating greater transparency in its review process.
A report by the International Drug Policy Consortium presented 20 social justice and human rights principles to guide jurisdictions in developing regulatory frameworks to legalize recreational marijuana. The principles include protecting the rights of people who use drugs, providing support for those who faced criminalization under prior marijuana laws, and investing in inclusive, equitable, and sustainable cultivation, trade, and usage of marijuana.
In a recent paper, Alexander Sahn, a political science doctoral candidate at The University of California, Berkeley, analyzed the Great Migration, during which African Americans left the U.S. South in large numbers to flee racial violence. Sahn argued that local governments created many exclusionary zoning laws during the period of the Great Migration from 1940 to 1970 because of “conservative white racial attitudes” and white residents’ “preferences for racial segregation.” Through an analysis of historical zoning laws, Sahn found that the cities to which more Black people migrated to during this period now have more exclusionary zoning laws, fewer multi-family housing units available, and less affordable housing than cities that had lower Black migration rates .

FLASHBACK FRIDAY

In an essay in The Regulatory Review, James Goodwin, senior policy analyst with the Center for Progressive Reform, argued that the regulatory process could benefit from public comment through folk art mediums. Goodwin believed that current public comment processes prevent many people without legal or technical skills from contributing to the regulatory process. Goodwin proposed that agencies encourage public submissions of folk art such as hip hop—an authentic, universally accessible, and culturally significant medium of communication—to re-democratize the rulemaking process.

Regulating Tiger Kings

Thu, 17 Sep 2020 04:05:44 GMT

Joe Exotic, the star of the widely watched documentary, “Tiger King,” reportedly owned more than 200 tigers on his compound in Oklahoma prior to being sentenced to jail for various criminal violations. The U.S. Fish and Wildlife Service states that “the number of captive tigers in the United States alone likely exceeds the numbers found in the wild.”

Private possession of big cats poses risks to humans of brutal, deadly animal attacks. It also poses risks to the animals themselves who suffer from mistreatment and neglect.

Proposed bipartisan federal legislation would prohibit individuals who are not licensed by the U.S. Department of Agriculture (USDA) from possessing big cats—including lions, tigers, leopards, cheetahs, jaguars, and cougars. It also would prohibit public contact with big cats.

The legislation would allow current owners of big cats to keep them but would require registration of each animal so that law enforcement officers are able to respond quickly to an accident. Current owners would not be allowed to breed their big cats and would be prevented from allowing public contact with their cats.

The proposed legislation, known as the Big Cat Public Safety Act and sponsored by U.S. Representative Brian Fitzpatrick (R-Pa.) and U.S. Representative Mike Quigley (D-Ill.), has garnered support from over 200 representatives across party lines. Quigley argues that the legislation is needed to “address a serious issue that causes immeasurable animal suffering and introduces inexcusable threats to human safety.”

Although regulation of big cats currently occurs at international, federal, and state levels, critics argue that existing laws are not stringent enough and do not accomplish the goals of keeping humans and big cats safe.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international treaty aimed at preventing international trade from harming endangered species. CITES provides a framework for nations to follow by stating that certain species of animals should not be traded unless certain circumstances apply. But CITES then leaves it to individual nations to create their own enforcement measures.

To comply with CITES, as well as other treaties, the United States enacted the Endangered Species Act (ESA). The ESA prohibits people from “taking” endangered or threatened species, including harassing, harming, capturing, or trapping such species. The U.S. Fish and Wildlife Service classifies all tigers as endangered, one subspecies of lion as endangered, and another subspecies of lion as threatened.

In 2016, the U.S. Fish and Wildlife closed a loophole in the ESA that exempted certain “generic tigers” from otherwise prohibited activities such as “interstate commerce and export.” The ESA does not, however, restrict movement or sale of endangered species within states. By banning breeding and non-licensed possession of big cats, the Big Cat Public Safety Act could help prevent sales of big cats.

Another federal law, the Animal Welfare Act, dictates minimum standards for exotic animal exhibitors and dealers. Using its authority under the Animal Welfare Act, USDA issued rules requiring exhibitors and dealers to obtain a license and to follow certain “humane handling, shelter, space requirements, feeding, watering, sanitation, ventilation, veterinary care, and transport” standards. Critics argue that the Trump Administration is failing to conduct adequate animal welfare inspections and that enforcement cases have declined 92 percent from 2016.

Under a law passed in 2003—the Captive Wildlife Safety Act—transporters, exhibitors, and owners of big cats do face the need to comply with some federal regulations. Under this law, no big cats are allowed to be transported across state lines for any reason, including for household moves or veterinary visits, unless the mover qualifies for an exemption. Exempt entities include individuals registered under the Animal Welfare Act, “state colleges and universities, state agencies, … state-licensed veterinarians, and wildlife sanctuaries.”

The Captive Wildlife Safety Act defines sanctuaries as non-profit organizations that do not sell big cats, their parts, or products made from them, do not breed big cats, and do not allow members of the public to have direct contact with big cats. Sanctuaries must keep records of transactions involving big cats as well as allow inspections of the facilities, records, and animals.

But neither the Captive Wildlife Safety Act nor the Animal Welfare Act prohibit private possession of big cats—nor do they require licensing for private owners. The Big Cat Public Safety Act would address both of those regulatory gaps.

Without such a federal law, regulation falls to the states. According to a 2019 report, four states do not regulate possession of dangerous wild animals at all, and six states do not ban possession of big cats as pets.

This is why proponents of the proposed federal Big Cat Public Safety Act say it is needed. They argue that “captive big cats … killed 20 adults and mauled scores of others” and that private ownership of big cats causes physical and psychological harm to the animals. These proponents explain that “the current regulatory patchwork is failing to protect public safety and animal welfare,” necessitating a federal ban on big cat possession.

Opponents of the proposed legislation argue that it would curtail “existing legal business activity.” U.S. Representative Rob Bishop (R-Utah) reportedly argued that “the proposal pits small, family-owned animal parks against big zoos, which would be able to keep their cats.”

Autonomous Weapons Under International Humanitarian Law

Wed, 16 Sep 2020 04:05:56 GMT

Imagine walking down the street when a drone flies up alongside you—and then shoots you. Although this exact scenario is currently fiction, some artificial intelligence researchers worry that autonomous weapons could shape our lives profoundly in the future.

As a result, some lawyers are considering how to regulate such weapons. Writing in his personal capacity, Charles Trumbull, a U.S. Department of State attorney-adviser, has argued that existing international humanitarian law (IHL) is flexible enough to cover autonomous weapons despite how this form of weaponry blurs the distinctions between human and machine decision-making.

Artificial intelligence (AI) relies on computer science to develop machines capable of completing work that historically required human operators, such as recognizing images and analyzing data. AI systems can perform some tasks better and more quickly than humans do.

AI allows autonomous weapons, for example, to respond faster to incoming threats such as high-speed missiles, endure harsh environments that human soldiers could not bear, and serve without later experiencing post-traumatic stress disorder.

Underscoring the value of AI for national security, Russia’s President Vladimir Putin has opined that “whoever becomes the leader in this sphere will become the ruler of the world.”

Autonomy in weapons varies. Semi-autonomous weapons can identify targets but require humans to initiate an attack, such as South Korea’s SGR A-1 Sentry. Autonomous weapons can attack targets without further human decision-making, such as Israel’s Harpy. Trumbull envisions a future in which technology progresses to the point that “fully autonomous weapons” take over more decision-making from humans, such as by assessing military objectives themselves.

Trumbull argues that, although IHL bans weapons that cause “unnecessary suffering” or “are inherently indiscriminate,” autonomous weapons do not by their nature necessarily fall into such categories. He emphasizes that the design of such weapons matters more under IHL than their effects in a particular scenario do, and that autonomous weapons could be designed to avoid these banned qualities.

Trumbull asserts that autonomous weapons will, however, pose challenges given that IHL focuses on whether a human operator’s decisions are reasonable rather than on the effects of those decisions. Whether a decision violates IHL depends on the information available when the attack occurred—instead of what is known in hindsight—and provides commanders a range of acceptable responses in a single scenario.

IHL, in other words, governs human decisions. Although machines lack IHL obligations, Trumbull claims that, even if an autonomous weapon makes a targeting decision that a human would have previously, IHL still applies to the human deploying the autonomous weapon. He argues that rather than placing the responsibility for military actions on machines, humans would remain responsible, with accountability shifting from the soldier using a gun to the humans who develop and deploy autonomous weapons.

But greater autonomy in weapons complicates the process of determining whether a human judgment to use force is reasonable.

Trumbull emphasizes that autonomous weapons can make unpredictable decisions after their deployment, weakening the link between lethal action and the decision to deploy. Furthermore, as reasonableness relies on how a commander’s actions compare to other commanders’ hypothetical decisions had they faced the same conditions, reasonableness in autonomous weapons will be unclear before militaries develop more experience with them.

Autonomous weapons also introduce uncertainty over the information that was available to support making an attack. Trumbull outlines a “distributed knowledge problem” in which commanders depend on information available from a whole host of “computer programmers, the weapon’s testers, intelligence units and friendly forces, satellite imagery, weather forecasters, and the weapon’s sensors.” He claims that the range of potential sources will create difficulties in assigning individual accountability for military outcomes.

Still, Trumbull asserts that using autonomous weapons should not create an accountability gap. Even if identifying the specific cause of some wrongdoing may be more difficult with autonomous weapons, war crimes against civilians remain illegal.

On the other hand, assessing potential war crimes becomes more difficult in cases without clear intent—as would likely be the case with autonomous weapons. In these situations, Trumbull proposes that IHL violations require a determination that an offending human has acted recklessly.

Although challenges exist in evaluating recklessness given current militaries’ relative lack of experience with autonomous weapons, Trumbull recommends that states can “develop norms of professional behavior” and “national rules of engagement” for autonomous weapons that can provide the basis for when a commander’s behaviors veer from reasonable to reckless. In addition, he suggests that an emphasis on state responsibility as opposed to individual responsibility could also help prevent an accountability gap.

Trumbull predicts that autonomous weapons will also impact how new weapons are tested and reviewed under the Geneva Conventions’ Additional Protocol I. The weapons review process depends on reliability and predictability: Does the weapon behave consistently as expected? If so, and if commanders and programmers of autonomous weapons deliberately direct them against civilians, Trumbull believes IHL violations will be clear.

Because autonomous weapons can use their learning capabilities to respond to their environments and act accordingly, how they behave in testing environments may not reflect their behavior in the field. Through learning, these weapons may even behave in ways entirely unpredicted by humans.

“This inherent degree of unpredictability does not mean that autonomous weapons are unlawful,” Trumbull argues. He claims that given the lack of transparency surrounding existing weapons review processes and coordination challenges among states, a universal autonomous weapons testing standard would be impractical.

Instead, he recommends that states “develop non-binding, good practices for improving autonomous weapon reliability.” He suggests that the Convention on Certain Conventional Weapons’s Protocol on Explosive Remnants of War and the U.S. Department of Defense’s Directive on Autonomy in Weapon Systems could provide models for practices such as quality control, testing, failsafe measures, and personnel training.

The potential advantages of autonomous weapons provide the world’s militaries great incentives to develop such weapons. Acknowledging the challenges of autonomous weapons for IHL’s human-centered standards, Trumbull argues that the time has come for discussions to shift from banning autonomous weapons to how to apply IHL in practice.