Showing papers by "Georgetown University Law Center published in 2010"

Making Self-Regulation More Than Merely Symbolic: The Critical Role of the Legal Environment:

Abstract: Using data from a sample of U.S. industrial facilities subject to the federal Clean Air Act from 1993 to 2003, this article theorizes and tests the conditions under which organizations' symbolic commitments to self-regulate are particularly likely to result in improved compliance practices and outcomes. We argue that the legal environment, particularly as it is constructed by the enforcement activities of regulators, significantly influences the likelihood that organizations will effectively implement the self-regulatory commitments they symbolically adopt. We investigate how different enforcement tools can foster or undermine organizations' normative motivations to self-regulate. We find that organizations are more likely to follow through on their commitments to self-regulate when they (and their competitors) are subject to heavy regulatory surveillance and when they adopt self-regulation in the absence of an explicit threat of sanctions. We also find that historically poor compliers are significantly l...

How International Financial Law Works (and How it Doesn't)

Abstract: The "Great Recession" has given way to a dizzying array of international agreements aimed at strengthening the prudential oversight and supervision of market participants. How these international financial rules operate is, however, deeply misunderstood. Theorists of international law view international financial rules as merely coordinating mechanisms in light of their informal "soft law" quality. Yet these scholars ignore the often steep distributional implications of financial rules that may favor some countries over others and thus fail to explain why soft law would be employed where losers to agreements can strategically defect from their commitments. Meanwhile, political scientists, though aware of the distributional dynamics of financial rule-making, rarely, if ever, examine international law as a category distinct from international politics. Law is instead cast as an inert, dependent variable of power, as opposed to an independent factor that can inform the behavior of regulators and market participants.This Article presents an alternative theory for understanding the purpose, operation and limitations of international financial law. It posits that international financial regulation, though formally "soft," is a unique species of cross-border cooperation bolstered by reputational, market and institutional mechanisms that have been largely overlooked by theorists. As a result, it is more coercive than classical theories of international law predict. The Article notes, however, that these disciplinary mechanisms are hampered by a range of structural flaws that erode the "compliance pull" of global financial standards. In response to these shortcomings, the Article proposes a modest blueprint for regulatory reform that eschews more drastic (and impractical) calls for a global financial regulator and instead aims to leverage transparency in ways that more effectively force national authorities to internalize the costs of their regulatory decision-making.

Why Soft Law Dominates International Finance—and not Trade

Abstract: International financial law is in many ways a peculiar instrument of global economic affairs. Unlike international trade and monetary affairs, where global coordination is directed through formal international organizations, international financial law arises through inter-agency institutions with ambiguous legal status. Furthermore, the commitments made by regulatory officials participating in such forums are non-binding. This divergence is perplexing, especially when comparing international financial law to international trade. Both trade and finance comprise key areas of 'international economic law' and their rules have important distributive consequences for global markets and market participants. This article suggests that in order to understand soft law's value as a coordinating mechanism, an institutional assessment of the way that law is enforced is necessary. Under close inspection, international financial law departs from traditional public international law notions of informality and can in fact be 'harder' than its soft-law quality suggests. This feature helps explain why international financial rules, though technically non-binding, are often relied upon. The predominance of international soft law in finance does not, however, imply that it is without flaws, and this article highlights important structural deficiencies that the World Trade Organization, a more mature legal regime, largely avoids. Oxford University Press 2010, all rights reserved, Oxford University Press.

Psychiatrists' Attitudes Toward and Awareness About Racial Disparities in Mental Health Care

Abstract: Objective: Psychiatrists may perpetuate racial-ethnic disparities in health care through racially biased, albeit unconscious, behaviors. Changing these behaviors requires that physicians accept that racialethnic disparities exist and accept their own contributions to disparities. The purposes of this study were to assess psychiatrists’ awareness of racial disparities in mental health care, to evaluate the extent to which psychiatrists believe they contribute to disparities, and to determine psychiatrists’ interest in participating in disparities-reduction programs. Methods: A random sample of psychiatrists, identified through the American Psychiatric Association’s member directory, was invited to complete the online survey. The survey was also distributed to psychiatrists at a national professional conference. Results: Of the 374 respondents, most said they were not familiar or only a little familiar with the literature on racial disparities. Respondents tended to believe that race has a moderate influence on quality of psychiatric care but that race is more influential in others’ practices than in their own practices. Onefourth had participated in any type of disparities-reduction program within the past year, and approximately one-half were interested in participating in such a program. Conclusions: Psychiatrists may not recognize the pervasiveness of racial inequality in psychiatric care, and they may attribute racially biased thinking to others but not to themselves. Interventions to eliminate racial-ethnic disparities should focus on revealing and modifying unconscious biases. Lack of physician interest may be one barrier to such interventions. (Psychiatric Services 61:173– 179, 2010)

Lessons from the experience of U.N. Convention on the Rights of Persons With Disabilities: addressing the democratic deficit in global health governance.

Abstract: This article reviews the contributions of the UN Convention on the Rights of Persons with Disabilities (CRPD) to the progressive development of both international human rights law and global health law and governance. It provides a summary of the global situation of persons with disabilities and outlines the progressive development of international disability standards, noting the salience of the shift from a medical model of disability to a rights-based social model reflected in the CRPD. Thereafter, the article considers the Convention's structure and substantive content, and then analyzes in specific detail the particular contributions of the Convention to health and human rights law and global health governance. It concludes with an exploration of the potential implications of the CRPD's innovations for some of the most pressing issues in global health governance, including the Convention's contributions to the principle of participation in decision-making.

Free at What Cost? Cloud Computing Privacy Under the Stored Communications Act

Abstract: The Stored Communications Act (SCA), a component of the broader Electronic Communications Privacy Act (ECPA), is the primary federal source of online privacy protections, but it is more than twenty years old. Despite the rapid evolution of computer and networking technology since the SCA’s adoption, its language has remained surprisingly static. The resulting task of adapting the Act’s language to modern technology has fallen largely upon the courts. In coming years, however, the courts will face their most difficult task yet in determining how cloud computing fits within the SCA’s complex framework.This Note ultimately concludes that the advertising supported business model embraced by many cloud computing providers will not qualify for the SCA’s privacy protections. In exchange for “free” cloud computing services, customers are authorizing service providers to access their data to tailor contextual and targeted advertising. This quid pro quo violates the SCA’s requirements and many customers will find that their expectations of privacy were illusory. Consequently, a cloud provider’s terms of service agreement may be the only privacy protections applicable to its customers.Subsequently, this Note explores whether the lack of privacy protections for cloud computing is consistent with Congress’s intent in adopting the SCA and whether it will be a catalyst for expanding privacy measures in the future. In response, Part V explores the SCA’s legislative history and argues that the modern form of cloud computing is incompatible with the concerns and Fourth Amendment principles that motivated Congress’s adoption of the Act. Part VI further examines potential judicial, legislative, and societal forces that could prompt revisions to the SCA, but concludes that the lack of privacy protections in cloud computing is unlikely to be addressed anytime soon.

Health Care Reform – A Historic Moment in US Social Policy

Abstract: On March 23, 2010, President Obama signed into law the first U.S. comprehensive health care reform bill, the Patient Protection and Affordable Care Act (PPACA). After almost a century of failed attempts, the U.S. now has a national health care system which promises to increase access to care, increase consumer choice, and ban insurance discrimination for individuals with preexisting medical conditions. The PPACA is expected to expand insurance coverage to 32 million individuals by 2019 through a variety of measures. At a cost of $938 billion over 10 years, the PPACA is projected to reduce the deficit by $143 billion in the first decade and $1.2 trillion over the second. Almost everyone will be required to purchase health insurance by 2014, with certain exceptions, or face a penalty. The mandate is coupled with sliding scale subsidies to make the purchase more affordable, and it limits annual and out of pocket spending. If the penalty is strong enough, the mandate will be effective in expanding the pool of insured people, spreading the health risk, and eventually decreasing premiums. Key coverage expansions, such as expanding Medicaid benefits to individuals and families with incomes up to 133% of the federal poverty line (FPL), are critical, but access to providers must also be ensured. By 2014, states must set up exchanges where consumers can shop for health insurance at competitive rates. Subsidies will be provided to individuals and families under 400% of the FPL and not eligible under Medicaid to help purchase insurance in the exchange. Additionally, small businesses with fewer than 100 employees will receive tax credits for offering insurance. The PPACA reverses common industry practices that have, in the past, created barriers to coverage. It prohibits insurers from denying coverage to those with preexisting conditions and allows young adults to remain on their parents’ plans up to age 26. For Medicare patients, the Part D coverage gap is closed and cost sharing for preventative care is eliminated, while the amount of out-of-pocket costs paid per year is limited. This historic legislation takes great strides towards providing everyone with medical care, irrespective of income or health status. It will improve public health, and place more emphasis on primary and preventive care. However, issues still remain surrounding difficult choices on how to reduce increasing costs, improve quality, and ensure appropriate payment reimbursement for providers.

Pandemic Influenza: Ethics, Law, and the Public's Health

Abstract: Highly pathogenic Influenza (HPAI) has captured the close attention of policy makers who regard pandemic influenza as a national security threat. Although the prevalence is currently very low, recent evidence that the 1918 pandemic was caused by an avian influenza virus lends credence to the theory that current outbreaks could have pandemic potential. If the threat becomes a reality, massive loss of life and economic disruption would ensue. Therapeutic countermeasures (e.g., vaccines and antiviral medications) and public health interventions (e.g., infection control, social separation, and quarantine) form the two principal strategies for prevention and response, both of which present formidable legal and ethical challenges that have yet to receive sufficient attention. In part II, we examine the major medical countermeasures being considered as an intervention for an influenza pandemic. In this section, we will evaluate the known effectiveness of these interventions and analyze the ethical claims relating to distributive justice in the allocation of scarce resources. In part III, we will discuss public health interventions, exploring the hard tradeoffs between population health on the one hand and personal (e.g., autonomy, privacy, and liberty) and economic (e.g., trade, tourism, and business) interests on the other. This section will focus on the ethical and human rights issues inherent in population-based interventions. Pandemics can be deeply socially divisive, and the political response to these issues not only impacts public health preparedness, but also reflects profoundly on the kind of society we aspire to be.

Health care reform--a historic moment in US social policy.

Abstract: IN A HISTORIC CEREMONY ON MARCH 23, 2010, PRESIdent Obama signed into law the first US comprehensive health care reform bill, the Patient Protection and Affordable Care Act (PPACA). For almost a century, presidents have tried and failed to pass national health insurance—ranging from President Franklin Roosevelt’s exclusion of national insurance from the Social Security Act to the failure of President Nixon’s and President Clinton’s health care plans. Previously, health care reform passed incrementally with a uniquely US blend of public and private coverage. The War Labor Board’s exclusion of employerbased health insurance from wage and price controls significantly increased coverage. By 1954, Congress exempted employee benefits from income tax, creating powerful incentives. The enactment of Medicaid and Medicare in 1965 expanded public coverage, followed by President Clinton’s State Children’s Health Insurance Program and President Bush’s Medicare Part D Prescription Drug coverage.

Supply Chains and Porous Boundaries: The Disaggregation of Legal Services

Abstract: The economic downturn has had significant effects on law firms, and is causing many of them to rethink some basic assumptions about how they operate. In important respects, however, the downturn has simply intensified the effects of some deeper trends that preceded it, which are likely to continue after any recovery that may occur. This paper explores one of these trends, which is corporate client insistence that law firms disaggregate their services into discrete tasks that can be delegated to the least costly providers who can perform them. With advances in communications technology, there is increasing likelihood that some of these persons may be located outside the formal boundaries of the firm. This means that law firms may need increasingly to confront the make or buy decision that their corporate clients have regularly confronted for some time. The potential for vertical disintegration is a relatively recent development for legal services, but is well-established in other sectors of the global economy. Empirical work in several disciplines has identified a number of issues that arise for organizations as the make or buy decision becomes a potentially more salient feature of their operations. Much of this work has focused in particular on the implications of relying on outsourcing as an integral part of the production process. This paper discusses research on: (1) the challenges of ensuring that work performed outside the firm is fully integrated into the production process; (2) coordinating projects for which networks of organizations are responsible; (3) managing the transfer of knowledge inside and outside of firms that are participants in a supply chain; and (4) addressing the impact of using contingent workers on an organization’s workforce, structure, and culture. A review of this research suggests considerations that law firms will need to assess if they begin significantly to extend the process of providing services beyond their formal boundaries. Discussing the research also is intended to introduce concepts that may become increasingly relevant to law firms, but which currently are not commonly used to analyze their operations. Considering how these concepts are applicable to law firms may prompt us to rethink how to conceptualize these firms and what they do. This paper therefore is a preliminary attempt to explore: (1) the extent to which law firms may come to resemble the vertically disintegrated organizations that populate many other economic sectors and (2) the potential implications of this trend for the provision of legal services, the trajectory of legal careers, and lawyers’ sense of themselves as members of a distinct profession.

A randomized, controlled, trial of short cycle intermittent compared to continuous antiretroviral therapy for the treatment of HIV infection in Uganda.

Abstract: BACKGROUND: Short cycle treatment interruption could reduce toxicity and drug costs and contribute to further expansion of antiretroviral therapy (ART) programs. METHODS: A 72 week non-inferiority trial enrolled one hundred forty six HIV positive persons receiving ART (CD4+ cell count > or =125 cells/mm(3) and HIV RNA plasma levels <50 copies/ml) in one of three arms: continuous 7 days on/7 days off and 5 days on/2 days off treatment. Primary endpoint was ART treatment failure determined by plasma HIV RNA level CD4+ cell count decrease death attributed to study participation or opportunistic infection. RESULTS: Following enrollment of 32 participants the 7 days on/7 days off arm was closed because of a failure rate of 31%. Six of 52 (11.5%) participants in the 5 days on/2 days off arm failed. Five had virologic failure and one participant had immunologic failure. Eleven of 51 (21.6%) participants in the continuous treatment arm failed. Nine had virologic failure with 1 death (lactic acidosis) and 1 clinical failure (extra-pulmonary TB). The upper 97.5% confidence boundary for the difference between the percent of non-failures in the 5 days on/2 days off arm (88.5% non-failure) compared to continuous treatment (78.4% non failure) was 4.8% which is well within the preset non-inferiority margin of 15%. No significant difference was found in time to failure in the 2 study arms (p = 0.39). CONCLUSIONS: Short cycle 5 days on/2 days off intermittent ART was at least as effective as continuous therapy. TRIAL REGISTRATION: ClinicalTrials.gov NCT00339456.

Women's Voices, Work and Bodily Integrity in Pre‐Conflict, Conflict and Post‐Conflict Reconstruction Processes in Sierra Leone

Abstract: This article focuses on the historical trajectories of women's empowerment in Sierra Leone, taking three entry‐points as a means of exploring the dynamics of change over the pre‐conflict, conflict and post‐conflict periods: voice and political participation; work and economic participation; and bodily integrity. Looking at pathways of empowerment in pre‐conflict Sierra Leone, at experiences of women during the time of conflict over the course of a long and brutal civil war from 1991–2002, and at post‐conflict possibilities, the article highlights some of the changes that have taken place in women's lives and the avenues that are opening up in Sierra Leone in a time of peace. It suggests that understanding women's pathways of empowerment in Sierra Leone calls for closer attention to be paid to the dynamics of conflict and post‐conflict reconstruction, and to the significance of context in shaping constraints and opportunities.

The Joint Action and Learning Initiative on National and Global Responsibilities for Health

Abstract: A population’s health and well-being is primarily a national responsibility. Every state owes all of its inhabitants a comprehensive package of essential health goods and services under its obligations to respect, protect, and fulfill the human right to health. Yet health is also a global responsibility. Every state has a duty to ensure a safe and healthy world, with particular attention to the needs of the world’s poorest people. Improving health and reducing unconscionable health inequalities is both an international obligation under the human right to health and a matter of global social justice.The mutual obligations of states to safeguard the health of their own inhabitants and the health of people everywhere are poorly defined, with serious adverse consequences for world health. These obligations must be better understood. Central questions of vital importance to the health of the world’s population include: What are the duties of all states to ensure the right to the highest attainable standard of health for all their inhabitants? What are the components of a comprehensive package of essential goods and services under the right to health to which people everywhere are entitled? How specifically can states’ duties to govern well be incorporated into and realized through the health system? One of the most inadequately understood obligations is the responsibility of the international community to augment the capacity of low- and middle-income states to ensure their population’s health, with the specific contours of this obligation ill-defined. Indeed, international financial assistance is framed as “aid,” rather than an expression of mutual responsibility, leaving the flawed impression that international health assistance is a matter of charitable discretion rather than an international human rights obligation. The approach to health assistance as charity rather than as an obligation also means that this assistance is unreliable over the longer-term, leading to the reluctance of low- and middle-income countries to use it for recurrent public health expenditures. Continued and accelerated improvements in global health will require significant and reliable funding at a time of extended economic uncertainty and budget belt-tightening in many countries. Progress on global health therefore risks stagnating unless states have clarity on, accept, and adhere to national and international obligations to respect, protect, and fulfill the human right to health. Translating state obligations into improved health will also require building a more robust and effective global health governance structure. Current global health initiatives are too often undermined by a host of now well-recognized weaknesses: Global health actors do not sufficiently coordinate their activities with each other or the host countries, leading to fragmentation, nor do they make and keep longer-term funding commitments, leading to unpredictability. Development partners do not set the priorities required to meet all human health needs, and lack accountability for their own global health commitments. Host countries are not empowered to take “ownership” of health planning and programs. And the international community does not adequately monitor and evaluate programmatic effectiveness. Our aim is to propose a coherent global health governance framework for the post-MDG period that will clarify national and global responsibilities for health, enable countries to effectively carry out these responsibilities, and create accountability around them. In order to achieve this, we are establishing the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI). The primary purpose of the JALI is to catalyze and facilitate research, broad consultations, and campaigns that will lead to a global compact. Towards this end, the JALI will rigorously and systematically address the following issues: Clarify the essential package of health goods and services to which all human beings are entitled as part of their right to health; Clarify the responsibility of all states, even the poorest, to provide this essential package of health goods and services to all of their inhabitants; Assess the gap between the conditions (financial and others) for the provision of an essential package of health goods and services, and the domestic capacity of and use of that capacity by poorer countries - the gap for which the international community should take responsibility; Clarify the international responsibility to build the capacity of low- and middle-income states to provide an essential package of health goods and services to their inhabitants; Clarify the principles of good governance, both nationally and globally, including transparency, honesty, and accountability; Propose a coherent global health governance architecture to ensure robust national and global responsibilities for health. In particular, the JALI will answer the following four key questions: What are the essential services and goods guaranteed to every human being under the human right to health? What is the responsibility that all states have for the health of their own populations? What is the responsibility of all countries to ensure the health of the world's population? What kind of global health governance is needed to ensure that all states live up to their mutual responsibilities?

Global Securities Regulation after the Financial Crisis

Abstract: The global financial crisis requires a coordinated international response, but political obstacles stand in the way of a comprehensive solution. This article suggests that international cooperation in securities regulation is most feasible--though still politically difficult--if the subject of securities regulation is divided into pieces, and global regulators concentrate solely on the portion that involves interaction among sophisticated institutional investors. Even though the crisis originated in this sector, it is the domain in which there is the most global commonality of interests. By contrast, regulation of the retail segments of investment is plagued by particularly deep differences in history and institutional context, making it wise to move this subject of regulation off the near-term reform agenda. The article suggests a number of directions such convergence might take, including creating a dispute resolution system accessible to the transnational institutional investor community. Oxford University Press 2010, all rights reserved, Oxford University Press.

In Defense of Bailouts

Abstract: Systemic risk - the possibility that an individual firm’s failure will result in broad damages to the economy as a whole - is the epitome of financial crisis. Bailouts of troubled firms have long been the standard response to systemic risk. Yet, bailouts suffer from problems of political legitimacy. Bankruptcy is often presented as more legitimate alternative to bailouts because its loss allocation system is preset and determined in the abstract. This Article argues that the choice between bailouts and bankruptcy is illusory. Bailouts and bankruptcy are not alternative choices, but an integrated system; any preset resolution system will be abandoned for a bailout if it would produce socially unacceptable loss allocations. Therefore, bailouts’ political legitimacy is critical. Accordingly, the Article proposes a framework for analyzing bailouts’ legitimacy. It identifies and explores two fundamental questions involved in all bailouts. First, should bailouts be done ad hoc through Congress or should bailout authority be institutionalized in an agency? And second, should creditors of bailed out firms be forced to accept less than full payment (or take a “haircut”) as part of the bailout? Ensuring accountability and fairness in resolving these issues is essential for bailouts’ political legitimacy and ultimate efficacy.

The Rise and Fall of the Implied Warranty of Habitability

Abstract: Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution's frailty. Little-noticed by legal scholars, the tenants' rights revolution also has failed, and for broadly similar reasons.Withholding rent deliberately to challenge landlords' failure to repair is unduly risky for most tenants in ill-maintained dwellings: either moving to better housing is a better option or the risk of retaliation is too great. The implied warranty could still motivate landlords to repair if it limited evictions of low-income tenants who fall behind on their rent for other reasons, but a set of little-noticed doctrines deemed these tenants unworthy to claim the warranty's protection. Moreover, reformers left implementation to courts with neither the resources not the inclination to transform landlord-tenant relations.None of this was inevitable. The doctrines effectively limiting the warranty to deliberate rent withholding have weak justificiations. And contemporaneous procedural innovation in other areas of law offered alternatives to the unresponsive courts.More daunting was the transformation of the housing market. Fewer low-income tenants live in decrepit dwellings, but many suffer housing problems whose consequences may be even more severe: overcrowding, locations remote from jobs and good schools, and rents that crowd other necessities from their budgets. Looking at a clear, unified purpose, the tenants' rights revolution cannot begin to adapt to these changes.

Litigation Finance: A Market Solution to a Procedural Problem

Abstract: In a system dominated by settlement, scholars, lawyers, and judges who want to promote accuracy in litigation strive to promote accurate settlements This effort typically relies on judicial intervention in pretrial practice, or on extrajudicial substitutes, to educate parties on the merits of their positions and induce them to settle for amounts that reflect those merits The goal is to make pretrial resolutions look more like adjudicated resolutions, albeit with less expenseThese reform efforts largely fail to address a major force that can skew settlements away from the merits: imbalances in risk preferences Settlements are a product not only of the parties’ expectations for trial but also of their tolerance for risk In deciding whether to settle or proceed to trial, parties must compare a given settlement amount with a range of possible trial outcomes, the precise distribution of which is uncertain When parties choose between a certain outcome and an uncertain outcome, their choice will be affected by their risk preferences And where one party is a repeat player and the other is a one-time participant, they will have very different risk tolerances — the one-time, risk-averse participant will be more fearful of proceeding to trial, more eager to settle, and in a weaker bargaining positionWhen imbalances in risk preferences skew settlements away from the merits, this is just as much a market failure as a failure of procedure Unlike the efficient markets we rely on to price all sorts of assets and liabilities, the market for litigation claims is uniquely limited to just two participants The plaintiff can sell only to the defendant and the defendant can deal only with the plaintiff For this reason, imbalances in risk preferences can lead to the mispricing of lawsuitsIf we want the settlement process to value lawsuits accurately, perhaps we should do the opposite of what scholars have done in the past We should consider making settlements look less like adjudications and more like market transactions If a party to a lawsuit is poorly equipped to bear litigation risk and fearful of being coerced into an unfair settlement, we would not rely on judicial intervention to save him Rather, we would empower the party to help himself via a market transaction If the weaker party could off-load risk via the market to someone better able to bear it, he might be able to counter the stronger party’s bargaining advantage Indeed, by enlisting the help of a third party that holds a diverse portfolio of litigation risk and is better able to bear such risk, the weaker party could bolster his negotiating position and secure a settlement that reflects the merits of the lawsuit rather than the bargaining positions of the partiesThis Article compares traditional approaches to promoting accuracy with an alternative, market-based approach It considers the nascent litigation markets that exist in this country and abroad, and the obstacles that have prevented their maturation into a viable solution Finally, the Article considers reforms to foster a more robust litigation market The goal is to shed new light on a litigation finance industry long viewed by the legal profession and the academy with disdain The Article recasts litigation finance as a potential engine for good — a force that may promote accuracy in adjudication where conventional reform efforts have failed

Chasing the Greased Pig Down Wall Street: A Gatekeeper’s Guide to the Psychology, Culture and Ethics of Financial Risk-Taking

Abstract: The current financial crisis has once again focused attention on lawyers, corporate directors and auditors as gatekeepers, who are expected to introduce some degree of cognitive independence to the task of risk assessment and risk management in public companies, including financial services firms. This essay examines the psychological and cultural forces that may distort risk perception and risk motivation in hyper-competitive firms, beyond the standard economic incentives associated with agency costs and moral hazards, warning gatekeepers against too easily assuming that all is well when insiders display high levels of intensity, focus and devotion to hard-to-achieve goals. In fact, these may be the source of perceptual problems. It includes a section entitled “Three Variations on a Theme by Chuck Prince,” based on his famous reference to Citigroup having to dance because the music was still playing. Building on this metaphor, we look at the emotional and physiological impulses to dance into a frenzy, the pressure to win the dance competition, and dancing as performance for a fickle audience. The essay concludes by connecting culture to moral rationalizations – Goldman Sachs doing “God’s work”– and the exercise of individual power in organizations, and urges caution about the psychological and cultural forces that affect gatekeepers, too.

Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional

Abstract: The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims. First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of wholly intrastate activity: the substantial effects doctrine. Although commonly conceived as a Commerce Clause doctrine, from its inception this doctrine has been grounded in the Necessary and Proper Clause. In the 1990s, the Supreme Court developed a judicially administrable test for whether it is “necessary” for Congress to reach intrastate activity that substantially affects interstate commerce: the distinction between economic and noneconomic intrastate activity. Because the individual mandate fails to satisfy the requirements of this test as understood under existing doctrine, it exceeds the power granted to Congress by the Commerce and Necessary and Proper Clauses as currently construed by the Supreme Court. The mandate also fails to satisfy an alternative to the substantial effects doctrine that was proposed by Justice Scalia in a concurring opinion. Second (Part III), because the “individual responsibility requirement” purports to be a regulation of commerce and cannot possibly be construed as a tax, it is not justified under the tax power of Congress; and, if the “requirement” or mandate is an unconstitutional regulation, there is nothing for the “penalty” to enforce. Neither is the penalty, considered apart from the regulatory requirement, a tax under current doctrine. Third (Part IV), the Supreme Court should not further expand Congress’s power beyond existing doctrine to allow it to mandate that individuals engage in economic activity by entering into contracts with private companies. Such economic mandates are directly analogous to the commandeering of the states that the Supreme Court has held to be an improper exercise of the commerce power. The very few mandates that are imposed on the people pertain to their fundamental duties as citizens of the United States, such as the duty to defend the country or to pay for its operation. A newfound congressional power to impose economic mandates to facilitate the regulation of interstate commerce would fundamentally alter the relationship of citizen and state by unconstitutionally commandeering the people.In Part V, I conclude with a “realist” assessment of the likelihood that the Supreme Court will actually find the mandate to be unconstitutional.

Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum

Abstract: Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum – regardless of the merit of the underlying claim – for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule. In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong merits claims to asylum, have been rejected solely because of the deadline. Many scholars and practitioners suspected that this procedural bar had a dramatic effect on the U.S. asylum system. Until now, however, there has been no systematic, empirical study of the effects of the deadline on asylum seekers and the asylum system. The Department of Homeland Security (DHS), which is the first level adjudicator of affirmative applications for asylum, supplied the authors exclusively with a database of asylum claims that has never before been analyzed. This database includes demographic and other characteristics of all principal applicants for asylum before DHS since September 1998 – more than 300,000 cases – and the decision reached in each case. In this article, the authors report, for the very first time, what that database shows about DHS’s application of the one year deadline. They find, among other things, that: •Over the entire time frame studied, DHS determined that nearly a third of all affirmative asylum applicants missed the filing deadline. •In the years immediately after the deadline went into effect (FY 1998-FY 2002), DHS found only 27% of applicants to be late, but after that, DHS determined a significantly higher percentage to be late (35% from FY 2003 through June 8, 2009). •DHS has rejected the applications (finding no applicable exception) in the cases of 59% of those who were determined to have filed late (18% of all affirmative asylum applicants). •Applicants from certain countries such as the Gambia and Sierra Leone are much more disadvantaged by the deadline than applicants from certain other countries, such as Haiti and India. The deadline may particularly impact refugees who, upon arrival, are unable to find a community of emigrants from their home countries who could warn them about its existence. •It is likely that as a result of the deadline, since April 1998 DHS has rejected more than 15,000 asylum applications (involving more than 21,000 refugees) that would otherwise have been granted. The authors conclude that because the costs of the one-year deadline exceed its benefits, it should be repealed, as proposed by several bills that have been introduced in Congress.

Sovereignty, Accountability, and the Wealth Fund Governance Conundrum

Abstract: Sovereign wealth funds – state-controlled transnational portfolio investment vehicles – began as an externally imposed category in search of a definition. SWFs from different countries had little in common and no particular desire to collaborate. But SWFs as a group implicated the triple challenge of securing cooperation between deficit and surplus states, designing a legal framework for global capital flows, and integrating state actors in the transnational marketplace. This Article describes how an apparently artificial grouping of investors, made salient by the historical and political circumstances of their host states in the mid-2000s, became a vehicle for addressing some of the hardest policy problems of the past century and a site for innovation in international law-making and institution-building. I suggest that the funds’ hybrid public-private and transnational character makes them hard to define and govern, but also makes them exceptionally apt reflections of contemporary global finance and its multiple constituents. I elaborate this character in a four-part accountability matrix. The task of governing SWFs, just like the task of governing global finance, is about negotiating among public, private, internal and external demands for accountability in the absence of a stable hierarchy among them.

Systemic Regulation of Global Trade and Finance: A Tale of Two Systems

Abstract: The recent financial crisis has put enormous strains on the global systems governing international finance and trade. These two important international regulatory systems, created after World War II to promote growth and stability in the global economy, were put to the test in ways unprecedented since the 1930s. This article seeks to analyze and compare their performance as systemic regulators in the course of the crisis and concludes that the trading system performed quite well while the financial system virtually collapsed. This article seeks to account for this difference by looking at the nature of the rules and the institutions governing each and how they evolved so differently over the past 70 years. Central to the success of the World Trade Organization (WTO) is a regulatory approach that includes rules designed, and tested in practice, to align incentives with the public good and prevent regulatory capture and a self-enforcing dispute settlement mechanism that ensures accountability and enforceability. The article concludes that these differences hold important lessons for the reform of the rules and institutions governing finance and trade in the global economy, and the role the WTO should play in this reform.

Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law

Abstract: Whether moral universals exist is one of history's most widely debated topics. Virtually everyone has an opinion about it, and much ink has been spilled over the matter. For serious researchers, one might expect that broad and vaguely defined questions like this would give way to more focused inquiries; for example, whether any specific acts, such as murder, are universally prohibited, and if so whether the content of these prohibitions is largely uniform across cultures or varies significantly among different societies. Hardly any systematic research has been done to examine this question, however. The leading social scientific studies of homicide contain valuable insights, but they do not squarely address the existence of substantive moral universals or their codification in positive law. Although anthropologists have undertaken to study the role of intent, causation, and other elements of blame and responsibility in different cultural contexts, the ethnographic record is likewise largely devoid of the kind of detailed analysis of mens rea, actus reus, and available defenses or their civil law counterparts that might uncover the precise structure of a universal prohibition against homicide or its basis in human cognitive capacities. As a result, even answers to relatively simple questions, such as whether every known society utilizes an intent requirement or recognizes some kind of insanity, necessity, or mistake of fact defense, remain elusive and unavailable. Drawing on several years of research, this paper offers the first systematic comparative analysis of homicide norms in a large number of geographically and culturally unrelated jurisdictions. It draws on a unique database still being assembled of how the homicide prohibition is codified in several hundred jurisdictions around the world, including all 204 member-states of the United Nations and the Rome Statute of the International Criminal Court. The initial picture that emerges from this research is that legal systems and thus individuals throughout the world recognize that intentional killing without justification or excuse is prohibited, and that self-defense and insanity, and to a lesser extent necessity, duress, and provocation, can sometimes be potentially valid justifications or excuses. These are noteworthy generalizations that go far beyond anything in the existing legal or scientific literature in uncovering the properties of a specific universal or near-universal norm against homicide. The database itself will likely be useful to anthropologists, cognitive scientists, legal scholars, and other researchers who seek to improve our understanding of the structure of human moral intuitions and the biological and cultural processes that generate and support them. The paper is scheduled to appear in a Symposium Issue of the Brooklyn Law Review on the topic, Is Morality Universal and Should the Law Care? It is the first installment in a series of reports growing out of this research project, which bears directly on the question of moral universals and marks a potentially significant turning point in our understanding of this topic.

Protecting and Promoting the Human Right to Respect for Family Life: Treaty-Based Reform and Domestic Advocacy

Abstract: This article examines the right to respect for family life in international law, focusing on its underlying principles and explicit protections. The article identifies these legal norms so that drafters of international treaties, specifically the International Migrants Bill of Rights, and United States legal practitioners representing immigrant children can incorporate the right to respect for family life into their drafting and advocacy, thereby protecting and promoting this critical human right. To encourage both high-level, international treaty-based reform and the grassroots domestic advocacy necessary to comprehensively protect and promote this right, this article provides specific ideas for incorporating the right to respect for family life into (1) the International Migrants Bill of Rights and (2) the United States immigration advocacy process. Section II identifies the principles that underlie the right to respect for family life, especially as it relates to children: (1) that family is the natural and fundamental unit of society and (2) that maintaining the family unit is in the best interests of the child. It also discusses the individuals to whom the right to respect for family life typically attaches. Section III discusses examples of how courts and U.N. expert bodies, including the European Court of Human Rights and the United Nations Human Rights Committee, apply the right to respect for family life in child and family immigration contexts. Section IV analyzes the themes and reasoning in this case law. Section V discusses specific ideas for further integrating the right to respect for family life into the current version of the International Migrants Bill of Rights. Section VI identifies ways in which United States-based advocates can incorporate the right to respect for family life into their advocacy efforts. Section VII provides a brief conclusion.

The Gettier Problem and Legal Proof

Abstract: This article explores the relationships between legal proof and fundamental epistemic concepts such as knowledge and justification. A survey of the legal literature reveals a confusing array of seemingly inconsistent proposals and presuppositions regarding these relationships. This article makes two contributions. First, it reconciles a number of apparent inconsistencies and tensions in accounts of the epistemology of legal proof. Second, it argues that there is a deeper connection between knowledge and legal proof than is typically argued for or presupposed in the legal literature. This connection is illustrated through a discussion of the Gettier problem in epistemology. It is argued that the gap or disconnect between truth and justification that undermines knowledge in Gettier cases also potentially undermines the success of legal verdicts.

Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy

Abstract: In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose chief mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.

Human rights as a tool for tobacco control in Latin America

Abstract: T tobacco epidemic is one of the most dangerous and pervasive public health concerns the world faces today. Tobacco consumption is an epidemic that spreads not by infection, but by promotion and advertisement, and, more importantly, lack of effective regulation. In other words, it is an epidemic that can be controlled if governments implement appropriate tobacco control measures. Integrating a human rights approach in tobacco control has many advantages. Human rights law is one of the most powerful legal tools that can be used both domestically (in-country) and internationally. Moreover, human rights are also widely used in political discourse and they usually influence policy debates. As an area of discourse that is used globally, human rights law has a reach similar to the global dimension of the tobacco epidemic. Despite its utility, a human rights approach to advance tobacco control policies has not been widely used by the tobacco control movement. In fact, one could argue that the tobacco industry has been more proactive in using human rights law to attack tobacco control policies.1 This article addresses the connections between human rights law and tobacco control. Providing concrete examples from Latin America, we demonstrate the potential of a human rights approach to tobacco control, while at the same time we aim to explain how such approach can be used. This paper is divided into three sections. The first section provides background on human rights law and Human rights as a tool for tobacco control in Latin America

Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? (A Synopsis)

Abstract: This synopsis is to our article Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? The synopsis and article map and analyze three varieties of a new legal realism. We contend that these varieties of new legal realism provide responses to a “new formalism,” that of neoclassical law and economics. We conclude by outlining a “dynamic new realism” which builds from what we consider to be the best of the new legal realism.