Showing papers by "Georgetown University Law Center published in 2008"

Redesigning the SEC: Does the Treasury Have a Better Idea?

Abstract: The 2008 financial crisis has necessarily raised the question of regulatory redesign. Were regulatory failures responsible to any significant degree for the insolvency of the major investment banks? Even prior to the crisis's cresting, the Treasury Department issued a Blueprint in early 2008 concluding that the regulation of financial institutions in the U.S. was overly fragmented. This paper analyses both the Treasury Department's proposals and the role of the SEC in the rapid increase of leverage at major investment banks in the 2005 to 2008 era that led to their insolvency. Finding the SEC to be more competent at consumer protection and antifraud enforcement than at prudential financial regulation, this paper supports a twin peaks model for financial regulation in preference to either a universal regulator or the U.S.'s current system of functional regulation. It disagrees, however, with the Treasury's recommendation of greater reliance on self-regulation and principles over rules, finding that deference to self-regulation was at the heart of the SEC's recent failure in the Consolidated Supervised Entity Program and provides a paradigm of when self-regulation will fail. An alternative (and more modest) proposal is also made to Treasury's proposed preemption of state securities regulation. This article will appear in the 75th Anniversary SEC Symposium in the Virginia Law Review.

Mitigating pandemic influenza: the ethics of implementing a school closure policy

Abstract: Pandemic influenza response plans have placed a significant emphasis on school closures as a community mitigation strategy. However, school closures raise serious ethical concerns, many of which have been largely overlooked. First, evidence of this intervention's efficacy has not yet been firmly established, calling into question whether it will be useful against the threat. Second, school closures have the potential to create serious adverse consequences, which will disproportionately affect vulnerable populations. Thus, policy makers should focus on gathering more evidence about the efficacy of school closures and on strengthening communication and transparency about the strengths and weaknesses of any school-closure plan that they decide to adopt. Policy makers should also consider intermediate options, such as partial school closures, which might provide ways to reap many of the benefits of school closings, while minimizing the costs. Finally, policy makers must labor to ensure that the benefits and the burdens of any interventions are distributed equitably.

Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge

Abstract: Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of crime and tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

Global Health Law: A Definition and Grand Challenges

Abstract: It has been only recently that scholars have engaged in a serious discussion of "public health law." This academic discourse examines the role of the state and civil society in health promotion and disease prevention within the country. There is an important emerging literature on the international dimensions of health, but no similar systematic definition and exposition of a field we call "global health law." In this article we aim to fill this gap by defining global health law and characterizing the grand challenges. Given the rapid and expanding globalization that is a defining feature of today's world, the need for a coherent system of international health law and governance has never been greater. We begin with a discussion of the health hazards posed by contemporary globalization on human health and the consequent urgent need for global health law to facilitate effective multilateral cooperation in advancing the health of populations equitably. We then offer a definition of the emerging field of "global health law." After explicating the central features identified in our definition, we turn to an examination of the "grand challenges" - legal, political, and social - to reaching the full potential of global health law to advance human health in just and effective ways. Our definition of global health law follows, and the remainder of this section explains the salient aspects of the definition: Global health law is the study of the legal norms, processes, and institutions needed to create the conditions for people throughout the world to attain the highest possible level of physical and mental health. The field seeks to facilitate health-promoting behaviour among the key actors that significantly influence the public's health, including international organizations, governments, businesses, foundations, the media, and civil society. Global health law should stimulate investment in research and development, mobilize resources, set priorities, coordinate activities, monitor progress, create incentives, and enforce standards. The field should be guided by the value of social justice, and seek equitable distribution of health services, particularly to benefit the world's poorest populations. The domain of global health law primarily is concerned with (1) formal sources of public international law, including, for example, treaties establishing the authority and responsibility of states for the health of their populations and duties of international cooperation, and (2) formal subjects of international law, including states, individuals, and public international organizations. However, to be an effective global health governance strategy, global health law must evolve beyond its traditional confines of formal sources and subjects of international law. It must foster more effective collective global health action among governments, businesses, civil society and other actors. Accordingly, our definition of global health law is prescriptive as well as descriptive: it sets out the sort of international legal framework needed, but still unavailable, to empower the world community to advance global health in accordance with the value of social justice.

Resolving the Foreclosure Crisis: Modification of Mortgages in Bankruptcy

Abstract: For over a century, bankruptcy has been the primary legal mechanism for resolving consumer financial distress. In the current foreclosure crisis, however, the bankruptcy system has been ineffective because of the special protection it gives most home mortgages. Debtors may modify the terms of all debts in bankruptcy except those secured by mortgages on their principal residences. A bankrupt debtor who wishes to keep her house must pay the mortgage according to its original terms down to the last penny. As a result, many homeowners who are unable to meet their mortgage payments are losing their homes in foreclosure, thereby creating significant economic and social deadweight costs and further depressing the housing market.This Article empirically tests the economic assumption underlying the policy against bankruptcy modification of home-mortgage debt—that protecting lenders from losses in bankruptcy encourages them to lend more and at lower rates, and thus encourages homeownership. The data show that the assumption is mistaken; permitting modification would have little or no impact on mortgage credit cost or availability. Because lenders face smaller losses from bankruptcy modification than from foreclosure, the market is unlikely to price against bankruptcy modification. In light of market neutrality, the Article argues that permitting modification of home mortgages in bankruptcy presents the best solution to the foreclosure crisis. Unlike any other proposed response, bankruptcy modification offers immediate relief, solves the market problems created by securitization, addresses both problems of payment-reset shock and negative equity, screens out speculators, spreads burdens between borrowers and lenders, and avoids the costs and moral hazard of a government bailout. As the foreclosure crisis deepens, bankruptcy modification presents the best and least invasive method of stabilizing the housing market.

Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law

Abstract: This paper investigates the legitimacy of international criminal trials and defends them against objections grounded in the principle of legality. The argument begins with the observation that the center of gravity in international criminal tribunals lies in the trials themselves more than the punishments inflicted. Such often-discussed aims as giving victims a voice or creating a historical record of mass atrocities are goals of the trial process, not the punishment. Often, it is the spectacle of a former leader brought before a court for politically-motivated atrocities that captures the public imagination; the trial itself has a theatrical or didactic component. That is not an objection to the trials, if they are conducted fairly. But the use of the trial as political theater puts pressure on its fairness. This paper argues that the aim of the trials is norm projection: trials are expressive acts broadcasting the news that mass atrocities are, in fact, heinous crimes and not merely politics by other means. The trials are meant to project the message that atrocities are crimes, not political deeds that exist "beyond good and evil," a vision that underlies traditional amoralist concepts of raison d'tat or Kriegsraison. The second principal thesis of the paper is that the legitimacy of the tribunals comes from the fairness of their procedures and punishments, not their political pedigree. The legal and political arguments for the jurisdictional authority of international bodies to establish tribunals are only partly satisfactory, and insufficient on their own to legitimize the tribunals. Tribunals bootstrap themselves into legitimacy by the quality of justice they deliver; their rightness depends on their fairness. The clearest example is the Nuremberg Tribunal. Established by victorious allies with jurisdiction only over the Axis powers, it had to prove that it was no show trial, and the clearest evidence was the acquittals it produced. The final sections of the paper address the concern that international tribunals characteristically violate the principle of legality, in two ways: they are generally established only after the crimes they try are committed, and they sometimes read the law broadly, from a victim-centered point of view, rather than narrowly, as the legality-based rule of lenity in criminal law would require. The paper argues that the two motivating arguments behind the principle of legality - concern about fair notice, and concern about despotic abuse of the power to punish - are less compelling in international criminal law than they are in domestic law. As for the fair-notice rationale: the more horrendous the deeds, the less fairness requires formal notice of potential criminal liability. As for the government abuse rationale: : there is simply much less danger of government abuse in international criminal law than in domestic legal systems, because ICL arises from weak, decentralized institutions rather than strong, concentrated ones. Skeptics point to the free-floating, cosmopolitan character of the tribunals in order to attack their legitimacy. But exactly the same facts demonstrate that the worry about abuses of the legal process by holders of state power is not a powerful one.

Assessing mandatory HPV vaccination: who should call the shots?

Abstract: In 2007, many legislatures considered, and two enacted, bills mandating HPV vaccination for young girls as a condition of school attendance. Such mandates raise significant legal, ethical, and social concerns. This paper argues that mandating HPV vaccination for minor females is premature since long-term safety and effectiveness of the vaccine has not been established, HPV does not pose imminent and significant risk of harm to others, a sex specific mandate raises constitutional concerns, and a mandate will burden financially existing government health programs and private physicians. Absent careful consideration and public conversation, HPV mandates may undermine coverage rates for other vaccines.

The ADA Amendments Act of 2008

Abstract: The goal of the Americans with Disabilities Act (ADA) was to create a civil rights law protecting people with disabilities from discrimination on the basis of their disabilities. Disability rights advocates in 1990 were victorious in their efforts to open doors for people with disabilities and to change the country's outlook and acceptance of people with disabilities. These advocates believed that the terms of the ADA, based as they were on Section 504 of the Rehabilitation Act, combined with the legislative history of the ADA, would provide clear instructions to the courts that the ADA was intended to provide broad coverage prohibiting discrimination against people with a wide range of physical and mental impairments.Unfortunately, the Supreme Court -- with lower courts following in its lead, barricaded the door that the ADA had opened by interpreting the definition of "disability" in the ADA to create an overly demanding standard for coverage under the law. This article provides an overview of the advocacy effort that has resulted in restoring the original intent of the ADA and destroying the barriers of discrimination that prevent people with disabilities from fully participating in society.

The Rise and Fall of Invasive ISP Surveillance

Abstract: Nothing in society poses as grave a threat to privacy as the Internet Service Provider (ISP). ISPs carry their users' conversations, secrets, relationships, acts, and omissions. Until the very recent past, they had left most of these alone because they had lacked the tools to spy invasively, but with recent advances in eavesdropping technology, they can now spy on people in unprecedented ways. Meanwhile, advertisers and copyright owners have been tempting them to put their users' secrets up for sale, and judging from a recent flurry of reports, ISPs are giving in to the temptation and experimenting with new forms of spying. This is only the leading edge of a coming storm of unprecedented and invasive ISP surveillance. This Article proposes an innovative new theory of communications privacy to help policymakers strike the proper balance between user privacy and ISP need. We cannot simply ban aggressive monitoring, because ISPs have legitimate reasons for scrutinizing communications on an Internet teeming with threats. Using this new theory, policymakers will be able to distinguish between an ISP's legitimate needs and mere desires.In addition, this Article injects privacy into the network neutrality debate - a debate about who gets to control innovation on the Internet. Despite the thousands of pages that have already been written about the topic, nobody has recognized that we already enjoy mandatory network neutrality in the form of expansive wiretapping laws. The recognition of this idea will flip the status quo and reinvigorate a stagnant debate by introducing privacy and personal autonomy into a discussion that has only ever been about economics and innovation.

Ensuring Effective Pain Treatment: A National and Global Perspective

Abstract: Medical availability of effective pain medication is vitally important domestically and globally. Medical advances have substantially improved the technical capacity to control pain and diminish its consequences. Worldwide, millions of persons with chronic, acute, and terminal conditions have found relief from excruciating pain through medical intervention. However, richer countries have disproportionately benefited from improvements in access to and use of pain medication. The tragedy is that for most of the world's population, particularly persons in poorer countries, effective pain control is entirely unavailable.

Global Health Law: A Definition and Grand Challenges

Abstract: ∗As a consequence of rapid globalization, the need for a coherent system of global health law and governance has never been greater. This article explores the health hazards posed by contemporary globalization on human health and the consequent urgent need for global health law to facilitate effective multilateral cooperation in advancing the health of populations equitably. It sets forth the first definition of the emerging field of “global health law.” After explicating the central features identified in the definition, the article examines the “grand challenges” to reaching the full potential of global health law to advance human health in just and effective ways.

Climate Change, Intergenerational Equity, and International Law

Abstract: Climate change is an inherently intergenerational problem with extremely serious implications for equity between ourselves and future generations and among communities in the present and the future. More than twenty years ago I wrote an article entitled Climate Change, Intergenerational Equity and International Law. The basic issues and the analysis remain the same, though a number of international agreements relevant to climate change have been concluded since then.

The SEC, Retail Investors, and the Institutionalization of the Securities Markets

Abstract: The last thirty years or so have brought a rapid shift toward institutionalization in the financial markets in the U.S., i.e., investment by mutual funds, pension funds, insurance companies, bank trust departments and the like. This paper focuses on the institutional role of the SEC as a seventy-five year old agency in a capital marketplace far different from that of the 1930's. A baseline question about the future of financial regulation in the U.S. is whether the SEC, with such a long and weighty legacy of law-making from a time when public markets were retail markets, is competitively fit to act as a regulator in a capital marketplace that is now so institutional and global. Part I asks whether there is a coherent theory or approach to retail investor protection in today's marketplace, either in terms of enforcement intensity or rule-making. This Part considers two very different contemporary challenges to SEC's orthodoxy: the emergence of the British "light touch" to securities industry regulation, which favors informal suasion to heavy-handed enforcement, and the expansion of knowledge about consumer and investor behavior from research in behavioral economics. Neither, it argues, maps well onto the SEC's mission. Part II then moves to the institutional marketplace for issuer securities and engages in a thought experiment about whether, as many assume, markets that have no appreciable retail participation should properly be governed as "antifraud only." This Part considers what antifraud-only means, and again expresses some skepticism about whether we can expect to see the development of private markets, largely free of regulation, that substitute for the public ones we observe today. Finally Part III takes up whether the SEC's regulatory orthodoxy is stable enough as markets become not only institutional but global. It suggests, contrary to what many believe, that globalization leads to increasingly territorial (rather than listings) based exercise of regulatory jurisdiction over issuer disclosure. It also places the SEC's recent initiatives toward mutual recognition in this context. The unifying theme in all three Parts stems from a long-standing interest in studying the behavior of the SEC: why it acts as and when it does and (often more importantly) what limits it imposes on itself or has imposed from outside.

WHO code of practice on the international recruitment of health personnel.

Abstract: The numbers of migrating health workers have increased significantly over the past few decades and patterns of global migration have become more complex as increasing demand for health workers in the world’s wealthiest countries has resulted in large numbers of health workers migrating from lower-income countries to work in higher-income countries.1 Health worker migration is contributing to severe shortages of trained health workers in the lower-income countries and areas of greatest need, thereby weakening health systems that are already fragile in many countries, particularly in sub-Saharan Africa. International health workforce migration is an extraordinary and multifaceted public health challenge. While health workers have the human right to migrate to countries that wish to employ them and destination countries can appropriately strengthen their health systems by employing foreign health workers, large-scale migration can have a devastating impact on the health systems of source countries. In addition, widespread concerns have been increasingly raised about unethical and unfair recruitment practices. In response to this evolving global health challenge, Member States of WHO adopted resolution WHA 57.19 at the World Health Assembly in May 2004 mandating that the WHO Director-General develop a code of practice on the international recruitment of health personnel in consultation with WHO Member States and all relevant partners. This historic resolution authorizing the elaboration of the proposed code, marks the first time that WHO has used its constitutional authority to develop a non-binding code to be adopted by the World Health Assembly since the 1980 International Code of Marketing of Breast-milk Substitutes. On 1 September 2008, the WHO secretariat published the first draft of the code for consideration and comment by Member States and other stakeholders. The initial draft code was built on existing regional and bilateral agreements, memoranda of understanding, and national and regional codes of practice, as well as the web-based multistakeholder global dialogue and the collaborative work of the Health Worker Migration Policy Initiative and the Global Forum on Human Resources for Health, organized by the Global Health Workforce Alliance. Web-based hearings on the draft code were held through to 30 September 2008. This initiative provides an opportunity for Member States, health workers, recruiters, employers, academic and research institutions, health professional organizations, relevant sub-regional, regional and international organizations, whether governmental or nongovernmental, and all persons concerned with the international recruitment of health personnel to consider and comment on the draft code. Input received during the course of these web-based public hearings will contribute to developing a revised draft code of practice on the international recruitment of health personnel. The WHO code of practice is expected to be an important new instrument in the global response to the health worker migration issue. Designed to be global in scope, it is directed towards all persons concerned with the international recruitment of health personnel, including WHO Member States as well as health workers, recruiters, employers and civil society. Prior to the initiation of the proposed WHO code, several codes of practice on health worker migration were adopted over the previous decade at the national and regional level. However, there is no existing legal instrument with global coverage applicable to both source and destination countries. The proposed WHO code of practice would, therefore, be unique in scope and contribute new and vital guidance on the international recruitment of health personnel. The draft code sets out guiding principles and voluntary international standards for recruitment of health workers, to increase the consistency of national policies and discourage unethical practices, while promoting an equitable balance of interests among health workers, source countries and destination countries. Consistent with contemporary international legal practice, the initial draft of the code also aims to establish an international procedural structure to foster national dialogue, commitment and action on health worker migration. Importantly, this first draft does not aim to comprehensively address and resolve all of the complex substantive issues raised by the international recruitment of health personnel. Rather, the text was purposefully kept brief. The goal of the first draft is to provide a straightforward framework and platform on which to launch negotiations. WHO Member States may potentially consider and elaborate more detailed national and international commitments in the final version of the code or in future international instruments. Although the final text will technically be a non-binding international instrument, the proposed code may provide a significant first step towards the development of an effective framework for national and international cooperation to maximize the benefits, and mitigate the potential negative impacts, of international health worker migration on countries and to safeguard the rights of migrant health workers. ■

Defense Costs and Insurer Reserves in Medical Malpractice and Other Personal Injury Cases: Evidence from Texas, 1988-2004

Abstract: We study defense costs for commercially insured personal injury tort claims in Texas over 1988-2004, and insurer reserves for those costs. We rely on detailed case-level data on defense legal fees and expenses, and Texas state bar data on lawyers' hourly rates. We study medical malpractice ("med mal") cases in detail, and other types of cases in less detail. Controlling for payouts, real defense costs in med mal cases rise by 4.6% per year, roughly doubling over this period. The rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense counsel are flat.Defense costs in med mal cases correlate strongly with payouts, both in OLS and in an instrumental variable analysis. They also correlate with the stage at which a case is resolved, and case duration. Mean duration declined over time. Med mal insurers predominantly use outside counsel. Case-level variation in initial expense reserves predicts a small fraction of actual defense costs. In other areas of tort litigation (auto, general commercial, multi-peril, and other professional liability), defense costs rose by 2.2% per year. Defense costs in these cases are predicted by the same factors as in med mal cases, plus the presence of multiple defendants.Insurer reserving practices raise some puzzles. Med mal insurers did not react to the sustained rise in defense costs by adjusting their expense reserves, either in real dollars or relative to reserves for payouts. Thus, expense reserves declined substantially relative to defense costs. In other litigation areas, expense reserves rose along with defense costs.

Power Without Responsibility: Intermediaries and the First Amendment

Abstract: As Jerome Barron recognized in his classic article, the First Amendment rights of speakers and audiences must be evaluated in the contexts of their relationships to larger structures. To the extent that there is a right to speak or a right to hear, who is on the other side of that right? The system of free expression is not atomized, but pervasively structured by conduits such as television broadcasters and Internet service providers ("ISPs"). This article focuses on (potentially) harmful speech as it relates to claims for greater access to those conduits. Any effective proposal for access rights should deal with the recruitment of intermediaries to police and deter unlawful speech and the many and varied ways in which individual speakers will violate existing laws.

The International Migration and Recruitment of Nurses: Human Rights and Global Justice

Abstract: The international migration of health workers - physicians, nurses, midwives, and pharmacists - leaves the world's poorest countries with severe human resource shortages, seriously jeopardizing the achievement of the U.N. health Millennium Development Goals (MDGs). Advocates for global health call active recruitment in low-income countries a crime. Despite the pronounced international concern, there is little research and few solutions. This commentary focuses on the international recruitment of internationally educated nurses (IENs) from the perspective of human rights and global justice. It explains the complex reasons for nurse shortages in rich and poor countries; the duties of source and host countries; the human rights of health workers; and offers principles for responsible recruiting, focusing on national and global solutions.

'Old' and 'New' Institutions for Persons with Mental Illness: Treatment, Punishment, or Preventive Confinement?

Abstract: In 1972, I covertly entered a brutal, inhumane institution for the criminally insane in Eastern North Carolina as a pseudo-patient under a U.S. Department of Justice study. What I experienced during those many weeks would shape how I view what Irving Goffman called "total institutions." Since that formative experience as a young law student I have closely observed institutions that warehouse persons with mental illness in many regions of the world ranging from the Americas and Europe to the Indian subcontinent and Asia. Those experiences, together with the careful study of human rights reports and judicial decisions, have led me to one simple conclusion. Despite countless promises for a better life by national commissions, governments, and the international community, there has evolved a vicious cycle of neglect, abandonment, indignity, cruel and inhumane treatment, and punishment of persons with mental illness. This is not true in every place, time, and circumstance - there are pockets of deep caring and compassion. But for the vast majority, and in most geographic regions, this sad fact remains a tragic reality. The shameful history of benign, and sometimes malignant, neglect of persons with mental illness is well understood: the deep stigma and unredressed discrimination, the deplorable living conditions, and the physical and social barriers preventing their integration and full participation in society. The maltreatment of this vulnerable population has been reinforced by the hurtful stereotypes of incompetency and dangerousness. This article is based on a lecture at the Sheldonian, Oxford University, for Amnesty International. In this article I will show how this vulnerable population has been unconscionably treated. First, I will examine the gross human rights violations that have occurred, and continue to occur, in what I am calling "old" psychiatric institutions. During the mid-to-late twentieth century, however, many of these old institutions were closed as part of a social compact with mentally ill persons and their families to provide community care. The deinstitutionalization movement, however, resulted in new places of confinement for this population - jails, prisons, and homeless shelters. In the second part of this lecture, I will explore the new realities of criminal confinement of persons with mental illness. As we will see, incarceration of this vulnerable population in the criminal justice system has caused enormous suffering. And, if Dostoyevsky was correct that the "degree of civilization ... can be judged by entering its prisons," then by that measure we are a deeply uncivilized society.

Innovation after the Revolution: Foreign Sovereign Bond Contracts Since 2003

Abstract: For over a decade, contracts literature has focused on standardization. Scholars asked how terms become standard, and why they change so rarely. This line of inquiry painted a world where a standard term persists until it is dislodged by another standard term, perhaps after a brief window of ferment before the second term takes hold. It also overshadowed the early insights of boilerplate theories, which described contracts as a mix of standard and customized terms, and asked why the mix might be suboptimal. This article brings the focus back to the mix. It examines the development of selected provisions in sovereign bond contracts after a widely publicized boilerplate shift in 2003. The adoption of collective action clauses in sovereign bonds five years ago moved the documentation standard in New York closer to the prevailing practice in London. However, contrary to expectations, the shift away from old boilerplate did not lead to convergence around new boilerplate. Issuers in London and, to a lesser extent, in New York, have been experimenting with diverse formulations and institutional arrangements, including trustees and creditor committees. The contracts we study, as well as our interviews with practitioners and officials, suggest that standardization may be a matter of degree, that the degree of standardization may vary across different markets, and that a shock of the sort that led the 2003 shift may dislodge a previously standard term without replacing it with a new standard - erstwhile boilerplate becomes a platform for customization.

Discounting the Clean Development Mechanism

Abstract: This Note proposes discounting the value of emission credits generated from the Kyoto Protocol's flexibility mechanisms - the Clean Development Mechanism (CDM) and Joint Implementation (JI) - to promote more efficient, equitable, sustainable, and carbon-negative projects abroad. The paper begins by exploring the economics, flaws, and inefficiencies of these two mechanisms, finding them to be an inadequate solution to global climate change as they lead to insufficient and inefficient greenhouse gas reductions. The CDM and JI promote insufficient emissions reductions by allowing industrialized nations to swap domestic emissions for corresponding reductions in the developing world without any net global greenhouse gas reductions. Secondly, the two mechanisms award emissions reduction credits based off the global warming potential of the greenhouse gases reduced, rather than the costs of abatement, which can lead to gross market distortions. More critically, it allows industrialized nations to satisfy a large share of their Kyoto obligations by investing in a few isolated super-pollutant projects, thereby depriving the developing world of the necessary low-carbon technology transfer and improvements in sustainable development promised under the Kyoto Protocol. In response to these flaws, the author proposes "discounting" or reducing the number of emissions credits issued for a project, while maintaining the same level of actual emission reductions, thereby promoting net greenhouse gas reductions. Specifically he proposes discounting the value of credits generated by CDM and JI projects to more closely reflect the project's marginal cost of abatement and transactional costs. The Note proposes creating an expert panel to the CDM and JI, tasked with the duty of discounting the value of emissions credits to more closely reflect the marginal costs of abatement for various pollutants, projects, and host countries. The author concludes that so long as an international discounting scheme provides sufficient certainty, flexibility, and profits for foreign investment, dramatic emissions reductions will likely result.

The Sikh Turban: Post-9/11 Challenges to this Article of Faith

Abstract: Turbans have been worn by different people around the world for at least the past 3,000 years. For one community, the Sikhs, the turban carries deep religious significance. Members of the Sikh faith - the fifth largest religion in the world - are required to wear a turban pursuant to religious mandate.In the aftermath of the terrorist attacks of September 11, 2001, Sikh turbans have taken on a new meaning. Because Non-Sikhs tend to associate Sikhs' turbans with Osama bin Laden, Sikhs with turbans have become a superficial and accessible proxy for the perpetrators of the 9/11 attacks. As a result, turbaned Sikhs in America have been victims of racial violence and have had their identity challenged by calls for immigrant groups to assimilate into Western societies.This essay examines how the turban has transformed from a sacred piece of attire for Sikhs to a target for discriminatory conduct and an object of marginalization after 9/11. Part I provides an introduction to Sikhism, which originated in 17th century South Asia, and discusses the religious significance of the Sikh turban. Part II examines incidents of discrimination in several contexts involving turbaned Sikhs in America. Part III analyzes the debate surrounding assimilation that has been taking place in the West, which implicates conspicuous articles of faith, including the Sikh turban. The essay also explores the legal remedies available to turbaned Sikhs affected by discriminatory conduct or by broader policies on the wearing of turbans.The essay discusses the post-9/11 backlash as it relates to Muslims, Arabs, and South Asians. It attempts, for the first time, to report on Sikh concerns, which, until now, have largely been subsumed in broader discussions of the post-9/11 climate.

Sovereign Wealth Funds: Trustworthy Investors or Vehicles of Strategic Ambition?

Abstract: Sovereign wealth funds, the investment arms of foreign governments, are challenging the U.S.'s traditional notions of free enterprise and its commitment to open markets. In this paper, I attempt to discern the facts from the hype and assess whether there is due cause for the U.S. to take affirmative steps to better protect its interests. As investors in U.S. companies, sovereign wealth funds offer a number of benefits. The size of their available funds and their ability withstand short-term volatility help promote economic growth and job production in the U.S., not to mention offer U.S. companies and investors access to emerging markets and economic stability. As their record reveals, the concerns associated with sovereign wealth funds, including corruption and strategically-motivated investments are, to-date, only hypothetical. Nonetheless, the risks raised by the funds are significant, and safeguards to prevent them from becoming reality may be in order. In determining whether and to what extent to regulate sovereign wealth funds, the U.S. must avoid over-restricting the funds' participation in U.S. markets. Instead, the U.S. should consider narrowly-tailored options, such as disclosure of voting records or the use of external asset managers, to address the specific risks associated with sovereign wealth funds.

The case of the World Trade Organization

Abstract: This article explores the relationship between power and rules within the context of international relations, utilizing as a case-study what is arguably the most powerful international juridical institution in the world today, the World Trade Organization (WTO). The author draws upon a number of his previous works on the subject of the WTO and its predecessor, the GATT, wending through such topics as: the way that political and diplomatic leaders improvized and filled in the gaps of international institutions when the original idea for an International Trade Organization (ITO) failed; the remarkably elaborate development of the particularly deep and rich WTO Dispute Settlement (DS) jurisprudence (over 60,000 pages); and the constant tension between the role of nation-state power and the power allocated to international institutions, apparently necessitated by the huge impact of ‘globalization’ and interdependency in world affairs (especially economic) today. Various specific issues and cases illustrate these tensions and allocations, including treaty interpretation techniques, the degree of deference towards the members’ government actions, the arguments about the appropriate role of the ‘adjudicators’, and the delicately sensitive approach of the DS system towards clashes of policy necessitating ‘balance’. Throughout, particular emphasis is laid upon the ‘rule oriented’ (‘more legalization’) approach of the WTO DS jurisprudence, both in reflection on the historical and current developments of that juridical system—from ‘power oriented’ to ‘rule oriented’—and also in the important roles regarding tensions between ‘sovereignty’ concepts and international rule needs.

The international migration and recruitment of nurses: human rights and global justice.

Abstract: leadingtothecreationof the Global Health Workforce Alliance, no internationalor national agency is charged with quantifying or solvingtheproblem.TheWorldHealthOrganization(WHO)esti-mates that 4.3 million more health care workers are re-quiredtomeettheHealthMillenniumDevelopmentGoals,identifying 57 countries with critical shortages. Thirty-sixof these countries are in Africa, which has a shortfall of600000nurses.

Sex, Law and Consent

Abstract: The article defends the now fairly conventional liberal reform position that consent ought to be the demarcation between rape and non-criminal sex, responding to both radical feminist and modern queer theoretic arguments that problematize it. It then criticizes liberal arguments that legitimize virtually all consensual sex, leaving all of it relatively insulated not only against criminalization but also against moral and political critique. Consensual sex can be wanted or unwanted, and when unwanted, it can be harmful in ways that cannot be recognized by liberal understandings of consensual sex. Lastly, the article defends this claim, again, against both radical feminist and queer theoretic critiques that for opposing reasons seek to undermine the distinction between unwanted and wanted consensual sex.

The Deregulatory Effects of Preempting Tort Litigation : FDA Regulation of Medical Devices

Abstract: CHARLES RIEGEL UNDERWENT CORONARY ANGIOplasty in 1996, shortly after sustaining a myocardial infarction. Mr Riegel’s physician inserted the Evergreen balloon catheter, a medical device approved by the US Food and Drug Administration (FDA), into his patient’s coronary artery in an attempt to dilate the artery, but the catheter ruptured. Mr Riegel developed complete heart block, was placed on life support, and underwent emergency coronary artery bypass graft surgery. He sued Medtronic, the manufacturer of the device, alleging that the company was liable under New York tort law in designing, testing, inspecting, labeling, and marketing the catheter. On February 20, 2008, the Supreme Court held that the Medical Device Amendments of 1976 (MDA) bars common law claims challenging the safety or effectiveness of a medical device marketed in a form that received premarket approval from the FDA. Riegel v Medtronic Inc has broad implications for patient safety because it removes all means of judicial recourse for most consumers injured by defective medical devices.

Evaluating the Mission: A Critical Review of the History and Evolution of the SEC Enforcement Program

Abstract: The United States Securities and Exchange Commission (the 'SEC' or 'Commission') is nearing its seventy-fifth anniversary, a milestone that will be marked by reflection on the past and contemplation of the future. During this time of introspection, the Commission should take the opportunity to examine the manner in which it has reacted to the growth and changes in its regulatory authority and in the capital markets. One constant throughout its history has been the SEC's need to balance competing interests. The SEC's stated mission reflects this tension. Today, that mission is composed of three objectives: 'to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation'. Historically, the SEC's mission has focused on investor protection. As the SEC and its regulatory powers have grown in response to the ever more complex and international financial services markets, the seemingly straightforward mission of investor protection has become more intricate and multidimensional, prompting questions such as, 'Who are the investors that should be protected' and 'How should they be protected?' After all, investors range in sophistication, size, activity, goals, needs, and other attributes. They include traditional individual and institutional investors in the securities markets, traders, and foreign entities seeking to invest in the United States. Choices that the SEC makes in its rulemaking and other activities can favor or disfavor one group of investors over another. A rule beneficial for one investor may be detrimental to another, depending on an investor's investment strategy or changing circumstances. Indeed, because investors ultimately pay for inefficiencies arising from regulatory mandates through direct or indirect costs, diminished returns, and reduced choice, the rules must be made with careful analysis and deliberation. Congress acknowledged this potential harm in 1996 when it revised the SEC's statutory mandate to expressly require the SEC 'to consider or determine whether an action is necessary or appropriate in the public interest' and to 'consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.' This multidimensional aspect of investor protection applies not only to rulemaking, but also to enforcement matters. Each enforcement matter involves in some degree a balancing of competing interests, some at a pragmatic, case-specific level and others at a higher policy level. For example, in distributing money recovered in an enforcement action against a bankrupt company, the SEC conceivably could decline a distribution to all investors and instead choose a distribution that favors one class of investor over another, such as common stockholders over senior debtholders, which by virtue of their preferred position may have had greater recovery per dollar invested than did common stockholders, but still fell short of their desired recovery. In its overall enforcement program, the SEC's decisions about resource allocation, charges to be brought, and relief to be sought may enhance the protection of one group of investors at the potential cost of another. Advancing a novel legal theory may protect the group of investors in a particular case, but have unintended detrimental consequences to investors as a whole. The enforcement decisions of the SEC must be guided by the multidimensional nature of the SEC's mission of protecting investors; maintaining fair, orderly, and efficient markets; and facilitating capital formation. The difficult choices of balancing conflicting interests must be guided by the transcendent principles of predictability, fairness, and transparency, culminating in the rule of law. These principles are the defining characteristics of the U.S. markets. In order to assess the SEC's application of these principles to its enforcement decisions, this Article investigates the shifting focus of the SEC's enforcement program from its inception to the present day. The Article explores the development and usage of the SEC's statutory enforcement powers in the context of due process and fairness. Finally, the Article calls for the Commission to appoint an independent advisory committee to conduct a detailed review and evaluation of the policies and procedures of the enforcement program in light of the changes in the SEC's statutory authority over the course of the last three decades.

Implementing the Hypothetical Monopolist SSNIP Test with Multi-Product Firms

Abstract: This note describes the implementation of the hypothetical monopolist ssnip test for market definition in the context of merger cases where firms produce multiple differentiated products. The test developed here represents an extension and generalization of the Katz-Shapiro and O'Brien-Wickelgren market definition test for the case of multi-product firms. We present and explain this test with an illustrative example. In the Appendix, we provide a more general and technical description of the test.