Arkansas Law Review

Vol. 71, No. 3 (2019)

Article

Protecting Due Process During Terrorism Adjudications: Redefining "Crimes Against Humanity" and Eliminating the Doctrine of Complimentary Jurisdiction in Favor of the International Criminal Court

Daniel N. Clay

When we sit in judgment we are holding ourselves out as people—as the kind of a community—that are worthy of this task. It is the seriousness, the gravity, of the act of judgment which gives rise to our legitimate and laudable emphasis on procedural fairness and substantive accuracy in criminal procedure. But these things focus on the defendant—the one judged. I am concerned about us who would presume to sit in judgment. Who are we that we should do this? Whether we intend to do so or not, we answer this question in part through the way we conduct our trials.

Article

The Constitutional Rights of Advanced Robots (and of Human Beings)

R. George Wright

Constitutional rights create and destroy otherwise available options for the rights-bearer, for governments, and for affected third parties. Thus, conferring a constitutional right always requires at least some minimal defense. But conferring a constitutional right can certainly be appropriate if the recipient of the right seems to deserve or otherwise qualify for the right in question, or if conferring the right makes sense on other, perhaps partly pragmatic, grounds.

Article

Medical Marijuana in Arkansas: The Risks of Rushed Drafting

Carol Goforth and Robyn Goforth

Arkansas voters passed the Arkansas Medical Marijuana Amendment to the state constitution in late 2016. Among many other provisions, the amendment imposed a 120 day time limit (later extended by the Arkansas legislature to 180 days) within which the Arkansas Department of Health and other agencies were to adopt rules implementing the voter mandate. While six months might seem like plenty of time in which to adopt appropriate legislation and regulations, the reality is that careful drafting is painstaking. Rushing through drafting produces writing that is unclear and inconsistent. It can result in requirements with which it is difficult (or impossible) to comply. The medical marijuana provisions contained an unfortunately large number of examples of the problems caused by rushed drafting. This article seeks to educate those who wish to use the constitutional amendment process in the future about the difficulty of clear drafting when particularly complex issues are involved.

Article

The Ever-Changing Landscape of Informed Consent and Whether the Obligation to Explain a Procedure to the Patient May Be Delegated

Samuel D. Hodge and Maria Zambrano Steinhaus

Informed consent is an integral part of the shared decision making process and requires a patient be informed of the benefits, risks and alternatives to a medical procedure. Informed consent has its foundation in the ethical notion of patient autonomy and fundamental human rights. After all, it is the patient’s decision to determine what may be done to his or her body and to ascertain the risks and benefits before undertaking a procedure. On the other hand, a physician’s role is to act as a facilitator in the patient’s decision making process by providing information about the planned treatment and to answer questions. While the roles of the patient and physician seem clearly defined, a number of barriers present challenges in creating a process that guarantees a patient understands a test or procedure. The first part of this article will explore the liability of various health care providers who participate in the informed consent process. The second section will examine whether the treating physician may delegate the duty to explain the risks and alternatives of a procedure to another.

Comment

Too Plain to Be Misunderstood: Sovereign Immunity Under the Arkansas Constitution

Robert C. Dalby

The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the years of convoluted and inconsistent cases interpreting the scope of the State’s protection from suit. This comment attempts to abate the Arkansas lawyer’s burden in understanding the language that is ostensibly impossible to misunderstand.

Comment

Marijuana Business Attorneys and the Professional Deference Standard

Andrew Dixon

Imagine that you practice as an attorney in the State of Arkansas. A client solicits your advice about opening a marijuana dispensary or cultivation center. The client might want you to assist him in filing a dispensary application with the State. On the other hand, she might want you to negotiate a commercial lease or to provide services to ensure compliance with municipal zoning laws. Although Arkansas voters approved a constitutional amendment permitting medical marijuana sales, you provide a clear warning to your client: possessing, manufacturing, selling, and distributing marijuana remains a federal crime. After these precautions, however, you proceed to business as usual, providing a routine legal service just as you would for any other client.