Showing papers by "Georgetown University Law Center published in 2012"

The New Ambiguity of 'Open Government'

Abstract: “Open government” used to carry a hard political edge: it referred to politically sensitive disclosures of government information. The phrase was first used in the 1950s, in the debates leading up to passage of the Freedom of Information Act. But over the last few years, that traditional meaning has blurred, and has shifted toward technology. Open technologies involve sharing data over the Internet, and all kinds of governments can use them, for all kinds of reasons. Recent public policies have stretched the label “open government” to reach any public sector use of these technologies. Thus, “open government data” might refer to data that makes the government as a whole more open (that is, more accountable to the public), but might equally well refer to politically neutral public sector disclosures that are easy to reuse, but that may have nothing to do with public accountability. Today a regime can call itself “open” if it builds the right kind of web site — even if it does not become more accountable. This shift in vocabulary makes it harder for policymakers and activists to articulate clear priorities and make cogent demands.This essay proposes a more useful way for participants on all sides to frame the debate: We separate the politics of open government from the technologies of open data. Technology can make public information more adaptable, empowering third parties to contribute in exciting new ways across many aspects of civic life. But technological enhancements will not resolve debates about the best priorities for civic life, and enhancements to government services are no substitute for public accountability.

What Privacy Is For

Abstract: Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection for the liberal self. Its function is principally a defensive one; it offers shelter from the pressures of societal and technological change. So characterized, however, privacy is reactive and ultimately inessential. In fact, the liberal self who is the subject of privacy theory and privacy policymaking does not exist. The self who is the real subject of privacy law- and policy-making is socially constructed, emerging gradually from a preexisting cultural and relational substrate. For this self, the purpose of privacy is quite different. Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable. It protects the situated practices of boundary management through which self-definition and the capacity for self-reflection develop. So described, privacy is anything but old-fashioned, and trading it away creates two kinds of large systemic risk. First, privacy is an indispensable structural feature of liberal democratic political systems. Freedom from surveillance, whether public or private, is foundational to the capacity for critical self-reflection and informed citizenship. A society that permits the unchecked ascendancy of surveillance infrastructures cannot hope to remain a liberal democracy. Under such conditions, liberal democracy as a form of government is replaced, gradually but surely, by a form of government that I will call modulated democracy because it relies on a form of surveillance that operates by modulation: a set of processes in which the quality and content of surveillant attention is continually modified according to the subject’s own behavior, sometimes in response to inputs from the subject but according to logics that ultimately are outside the subject’s control. Second, privacy is also foundational to the capacity for innovation, and so the perception of privacy as anti-innovation is a non sequitur. A society that values innovation ignores privacy at its peril, for privacy also shelters the processes of play and experimentation from which innovation emerges. Efforts to repackage pervasive surveillance as innovation — under the moniker “Big Data” — are better understood as efforts to enshrine the methods and values of the modulated society at the heart of our system of knowledge production. In short, privacy incursions harm individuals, but not only individuals. Privacy incursions in the name of progress, innovation, and ordered liberty jeopardize the continuing vitality of the political and intellectual culture that we say we value.

The Nature of Risk Preferences: Evidence from Insurance Choices

Abstract: We use data on insurance deductible choices to estimate a structural model of risky choice that incorporates 'standard' risk aversion (diminishing marginal utility for wealth) and probability distortions. We find that probability distortions - characterized by substantial overweighting of small probabilities and only mild insensitivity to probability changes - play an important role in explaining the aversion to risk manifested in deductible choices. This finding is robust to allowing for observed and unobserved heterogeneity in preferences. We demonstrate that neither Kőszegi-Rabin loss aversion alone nor Gul disappointment aversion alone can explain our estimated probability distortions, signifying a key role for probability weighting.

Explaining the Housing Bubble

Abstract: There is little consensus as to the cause of the housing bubble that precipitated the financial crisis of 2008. Numerous explanations exist: misguided monetary policy; a global savings surplus; government policies encouraging affordable homeownership; irrational consumer expectations of rising housing prices; inelastic housing supply. None of these explanations, however, is capable of fully explaining the housing bubble. This Article posits a new explanation for the housing bubble. First, it demonstrates that the bubble was a supply-side phenomenon attributable to an excess of mispriced mortgage finance: mortgage-finance spreads declined and volume increased, even as risk increased—a confluence attributable only to an oversupply of mortgage finance. Second, it explains the mortgage-finance supply glut as resulting from the failure of markets to price risk correctly due to the complexity, opacity, and heterogeneity of the unregulated private-label mortgage-backed securities (PLS) that began to dominate the market in 2004. The rise of PLS exacerbated informational asymmetries between the financial institutions that intermediate mortgage finance and PLS investors. These intermediation agents exploited informational asymmetries to encourage overinvestment in PLS that boosted the financial intermediaries’ volume-based profits and enabled borrowers to bid up housing prices. This Article proposes the standardization of PLS as an information-forcing device. Reducing the complexity and heterogeneity of PLS would facilitate accurate risk pricing, which is necessary to rebuild a sustainable, stable housing-finance market.

The Supreme Court’s Surprising Decision On The Medicaid Expansion: How Will The Federal Government And States Proceed?

Abstract: In National Federation of Independent Business v. Sebelius , the US Supreme Court upheld the constitutionality of the requirement that all Americans have affordable health insurance coverage. But in an unprecedented move, seven justices first declared the mandatory Medicaid eligibility expansion unconstitutional. Then five justices, led by Chief Justice John Roberts, prevented the outright elimination of the expansion by fashioning a remedy that simply limited the federal government’s enforcement powers over its provisions and allowed states not to proceed with expanding Medicaid without losing all of their federal Medicaid funding. The Court’s approach raises two fundamental issues: First, does the Court’s holding also affect the existing Medicaid program or numerous other Affordable Care Act Medicaid amendments establishing minimum Medicaid program requirements? And second, does the health and human services secretary have the flexibility to modify the pace or scope of the expansion as a negotiating str...

A Framework Convention on Global Health: Health for All, Justice for All

Abstract: Health inequalities represent perhaps the most consequential global health challenge and yet they persist despite increased funding and innovative programs. The United Nations is revising the Millennium Development Goals (MDGs) that will shape the world for many years to come. What would a transformative post-MDG framework for global health justice look like? A global coalition of civil society and academics—the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI)—has formed an international campaign to advocate for a Framework Convention on Global Health (FCGH). Recently endorsed by the UN Secretary-General, the FCGH would reimagine global governance for health, offering a new post-MDG vision. This Special Communication describes the key modalities of an FCGH to illustrate how it would improve health and reduce inequalities. The modalities would include defining national responsibilities for the population's health; defining international responsibilities for reliable, sustainable funding; setting global health priorities; coordinating fragmented activities; reshaping global governance for health; and providing strong global health leadership through the World Health Organization.

Will Tort Reform Bend the Cost Curve? Evidence from Texas

Abstract: Will tort reform “bend the cost curve?” Health-care providers and tort reform advocates insist the answer is “yes.” They claim that defensive medicine is responsible for hundreds of billions of dollars in health-care spending every year. If providers and reform advocates are right, once damages are capped and lawsuits are otherwise restricted, defensive medicine, and thus overall health-care spending, will fall substantially. We study how Medicare spending changed after Texas adopted comprehensive tort reform in 2003, including a strict damages cap. We compare Medicare spending in Texas counties with high claim rates (high risk) to spending in Texas counties with low claim rates (low risk), since tort reform should have a greater impact on physician incentives in high-risk counties. Pre-reform, Medicare spending levels and trends were similar in high- and low-risk counties. Post-reform, we find no evidence that spending levels or trends in high-risk counties declined relative to low-risk counties and some evidence of increased physician spending in high-risk counties. We also compare spending trends in Texas to national trends, and find no evidence of reduced spending in Texas post-reform, and some evidence that physician spending rose in Texas relative to control states. In sum, we find no evidence that Texas’s tort reforms bent the cost curve downward.

Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico

Abstract: Although liberal trade and development scholars disagree about the merits of the World Trade Organization (WTO), they both assume that WTO legal obligations restrict states’ regulatory autonomy. This article argues for relaxing this shared assumption by showing that, despite the restrictions imposed by international economic law obligations, states retain considerable flexibility to carve out policy autonomy. The article makes three distinct contributions. First, it analyzes how active WTO members can, through litigation and lawyering, influence rule interpretation to advance their interests. Second, the article redefines the concept of “legal capacity” in the WTO context and introduces the term “developmental legal capacity,” which describes how states can use legal tools and institutions not only as a sword to open new markets but also as a shield for heterodox economic policies. Third, the article offers a comparative analysis of two case studies, Brazil and Mexico, and shows that they have pursued different trade and litigation strategies. While subject to the same WTO obligations, these countries have made different use of their policy space according to their own economic objectives. The article concludes that, despite the apparent rigidity of the WTO, countries following a deliberate strategy can expand their regulatory space to advance their own interests.

Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law

Abstract: A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including drug courts, mental health courts, veterans courts, and reentry courts. The existing scholarly commentary on specialized criminal courts is largely trapped in the mode of advocacy, alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts. In contrast, this Article takes a closer and more critical look at the marked expansion of these courts as a peculiar strategy to devise alternatives to conventional jail- and prison-based sentencing.This article reveals that specialized criminal courts have become significant terrain for a contest between competing criminal law reformist models and that different outcomes in this contest may portend starkly contrasting futures for U.S. criminal law and governance. More specifically, this article introduces a typology and critical theoretical account of four criminal law reformist models at work in specialized criminal courts: a therapeutic jurisprudence model, a judicial monitoring model, an order maintenance model, and a decarceration model. Part II argues that, whereas the first three of these models threaten to aggravate existing pathologies in U.S. criminal law administration — expanding criminal supervision, diminishing procedural protections, and possibly even increasing incarceration despite opposite intended effects — the fourth, less predominant model, a decarceration model, holds the potential to bring about substantial transformative change in U.S. criminal law. On a decarceration model, specialized criminal courts function as experimental diversionary programs that assign otherwise jail- or prison-bound defendants mental health and drug treatment, job and housing placement, along with other services in lieu of incarceration. On this model, integration within social contexts outside criminal justice systems substitute for the surveilling function of criminal supervision and incarceration.Part III provides a theoretical framework to capture the possibilities for criminal law reform opened by a decarceration model, which may cognitively reframe shared understandings of crime and punishment; engage in institutional reinvention, transforming criminal law administrative institutions into different configurations; and facilitate systemic change by spurring conceptual shifts and freeing resources from criminal law administration for other sectors. Part IV begins to explore the more general perils attending a specialized criminal courts law reform strategy, including excessive legalism; dilution of the retributive and deterrent features of criminal punishment; inefficient proliferating specializations; and legitimation of harshness in conventional courts and unfairness toward less sympathetic, racial minority, or otherwise stigmatized defendants.

Shareholder Litigation in Mergers and Acquisitions

Abstract: Using hand-collected data, we examine the targeting of shareholder class action lawsuits in merger & acquisition (M&A) transactions, and the associations of these lawsuits with offer completion rates and takeover premia. We find that M&A offers subject to shareholder lawsuits are completed at a significantly lower rate than offers not subject to litigation, after controlling for selection bias, different judicial standards, major offer characteristics, M&A financial and legal advisor reputations as well as industry and year fixed effects. M&A offers subject to shareholder lawsuits have significantly higher takeover premia in completed deals, after controlling for the same factors. Economically, the expected rise in takeover premia more than offsets the fall in the probability of deal completion, resulting in a positive expected gain to target shareholders. However, in general, target stock price reactions to bid announcements do not appear to fully anticipate the positive expected gain from potential litigation. We find that during a merger wave characterized by friendly single-bidder offers, shareholder litigation substitutes for the presence of a rival bidder by policing low-ball bids and forcing offer price improvement by the bidder.

Competition Agency Design: What's on the Menu?

Abstract: In recent years the United Kingdom and various other countries have decided to restructure the institutions responsible for enforcing competition laws. How should a nation choose among myriad alternative arrangements? This paper lays out nine major institutional choices that governments must address in designing the implementation mechanism for a competition law. The paper discusses tradeoffs associated with each choice and examines interdependencies among different design elements. In doing so, the paper offers a structured framework that countries can use in forming new competition systems or altering existing institutional arrangements.

Beyond the “R Word”? Medicine's New Frugality

Abstract: The belief that cost should be no object in health care has limited efforts to control medical spending; elected officials generally insist that cutting services that yield no value will be sufficient. But eliminating such waste would merely postpone the reckoning.

Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform

Abstract: There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent over representation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice process, this Article focuses specifically on the unique opportunity and obligation that prosecutors have to address those disparities at the charging phase of the juvenile case.Professor Henning implores juvenile prosecutors to resist external pressures to respond punitively and symbolically to exaggerated perceptions of threat by youth of color and envisions a path toward structured decision making at the charging phase that is informed by research in adolescent development, challenges distorted notions of race and maturity, and holds prosecutors accountable for equitable decision making across race. While fully embracing legitimate prosecutorial concerns about victims’ rights and public safety, Professor Henning frames the charging decision as one requiring fairness, equity, and efficacy. Fairness requires that prosecutors evaluate juvenile culpability in light of the now well-documented features of adolescent offending. Equity demands an impartial application of the developmental research to all youth, regardless of race and socioeconomic status. Efficacy asks prosecutors to rely on scientifically validated best practices for ensuring positive youth development and achieving public safety. Thus, even when neighborhood effects and social structures produce opportunities for more serious and more frequent crime among youth of color, prosecutors have a duty to evaluate that behavior in light of the current developmental research and respond to that conduct with the same developmentally appropriate options that are so often available to white youth.As the gatekeepers of juvenile court jurisdiction, prosecutors should work with developmental experts, school officials, and other community representatives to develop and publish juvenile charging standards that reflect these goals. To increase transparency and encourage buy-in from the public, Professor Henning recommends that prosecutors track charging decisions according to race and geographic neighborhood and provide community representatives and other stakeholders with an opportunity to review those decisions for disparate impact. Finally, to ensure that communities of color are able to respond to adolescent offending without state intervention, Professor Henning contemplates a more expansive role for prosecutors who will engage and encourage school officials and community representatives to identify and develop adequate community-based, adolescent-appropriate alternatives to prosecution.

Interpretation and Construction

Abstract: In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined. This essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called “interpretation”— for example, something like “semantic interpretation” and “applicative interpretation.” Still, the terms “interpretation” and “construction” are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution.

vGUPPI: Scoring Unilateral Pricing Incentives in Vertical Mergers

Abstract: One key concern in vertical merger cases is input foreclosure. Input foreclosure involves raising the costs of competitors in the downstream market, which could in turn increase the sales and profits of the downstream merger partner. In this article, we explain how the upward pricing pressure resulting from unilateral incentives following a vertical merger can be scored with vertical Gross Upward Pricing Pressure Indices (“vGUPPIs”). These vGUPPIs are derived from an economic model where upstream firms sell differentiated inputs to downstream firms which in turn sell differentiated products. There are separate vGUPPIs for the upstream and downstream merging firms and, in addition, vGUPPIs for the rivals of the downstream firm whose costs are raised. Our model also explains how the vGUPPIs can account for potential input substitution and merger-specific elimination of double marginalization. These vGUPPIs are analogous to the horizontal GUPPIs commonly used for the evaluation of unilateral effects in horizontal mergers. Like the horizontal GUPPIs, the vGUPPIs provide more direct evidence on unilateral pricing incentives than other metrics commonly carried out in vertical merger cases, such as concentration indices and vertical arithmetic. They also are simpler to implement and require less data than merger simulation models.The Appendix:The Appendix supplements the technical analysis in the Moresi and Salop Vertical GUPPI article published in the Antitrust Law Journal.The appendices for this paper are available at the following URL: http://ssrn.com/abstract=2368872

The Battle Over Taxing Offshore Accounts

Abstract: The international tax system is in the midst of a contest between automatic information reporting and anonymous withholding models for ensuring that nations have the ability to tax offshore accounts. At stake is the extent of many countries’ capacity to tax investment income of individuals and profits of closely held businesses through an income tax in an increasingly financially integrated world.Incongruent initiatives of the European Union, the Organisation for Economic Cooperation and Development (OECD), Switzerland, and the United States together represent an emerging international regime in which financial institutions act to facilitate countries’ ability to tax their residents’ offshore accounts. The growing consensus that financial institutions should act as cross-border tax intermediaries represents a remarkable shift in international norms that has yet to be recognized in the academic literature.The debate, however, is about how financial institutions should serve as cross-border tax intermediaries, and for which countries. Different outcomes in this contest portend starkly different futures for the extent of cross-border tax administrative assistance available to most countries. The triumph of an automatic information reporting model over an anonymous withholding model is key to (1) allowing for the taxation of principal, (2) ensuring that most countries are included in the benefit of financial institutions serving as cross-border tax intermediaries, (3) encouraging taxpayer engagement with the polity, and (4) supporting sovereign policy flexibility, especially in emerging and developing economies. This Article closes with proposals to help reconcile the emerging automatic information exchange approaches to produce an effective multilateral system.

Beyond FATCA: An Evolutionary Moment for the International Tax System

Abstract: The international tax system is in the midst of a novel contest between information reporting and anonymous withholding models for ensuring that states have the ability to tax offshore accounts. At stake is the extent of many countries’ capacity to tax investment income of individuals and profits of closely held businesses through an income tax in an increasingly financially integrated world. Four incongruent initiatives of the European Union, the OECD, Switzerland, and the United States together represent an emerging international regime in which financial institutions act to facilitate countries’ ability to tax their residents’ offshore accounts. The growing consensus that financial institutions should act as “tax intermediaries” cross-border represents a remarkable shift in international norms that has yet to be recognized in the literature. What remains is a contest as to how financial institutions should serve as tax intermediaries cross-border, and for which countries. Different outcomes in this contest portend starkly different futures for the extent of cross-border tax administrative assistance available to most countries. The eventual triumph of an information reporting model over an anonymous withholding model is key to (1) allowing for the taxation of principal, (2) ensuring that most countries are included in the benefit of financial institutions serving as tax intermediaries cross-border, and (3) encouraging taxpayer engagement with the polity and supporting sovereign policy flexibility, especially in emerging and developing economies. The article closes with proposals to help reconcile the emerging automatic information exchange approaches and produce an effective multilateral system.

Human Rights and the Framework Convention on Tobacco Control: Mutually Reinforcing Systems

Abstract: This article explores the connection between human rights and tobacco control, and in particular, the Framework Convention on Tobacco Control (FCTC). We address rights-based arguments used by the tobacco industry to argue against tobacco regulation. We demonstrate the weakness of these arguments, and that tobacco control and human rights are, in fact, not in conflict, but are mutually reinforcing. We also offer counter-arguments in favour of tobacco regulation based on international human rights obligations. Moreover, we argue that international human rights law and human rights bodies can provide tobacco control advocates with avenues for international monitoring and enforceability, which are lacking in the FCTC.

The Supreme Court's Historic Ruling on the Affordable Care Act: Economic Sustainability and Universal Coverage

Abstract: Chief Justice Roberts confounded predictions, upholding the individual mandate (that requires most individuals to pay an annual tax if they do not have health insurance by 2014) based on Congress’ taxing power. Congress’ power to “lay and collect taxes” for the common defense and welfare provides an independent source of federal authority. Although the ACA explicitly called the levy a “penalty,” the chief justice preferred a functional definition that did not rely on a label. Congress imposed a tax as the only sanction for failing to buy insurance, which is calculated and collected by the Internal Revenue Service (IRS). “That is sufficient to sustain it” under the taxing power. The tax, moreover, is not overly punitive, so individuals have a realistic choice about whether to purchase insurance or to remain uninsured. The court’s decision supports taxation as a public health tool. While affording Congress financial resources, taxes also influence health-promoting activities. Tobacco taxes, for example, discourage smoking, rather than simply raise revenue. The Commerce Power. Beyond its health policy significance, the court’s ruling limits federal power, while retaining state authority. The Constitution grants Congress limited or “enumerated” powers, while the Tenth Amendment reaffirms that “powers not delegated to the US . . . are reserved to the States.” The court said the commerce power— Congress’ constitutional authority to regulate interstate and foreign commerce—could not support the mandate. Justice Roberts reasoned that the mandate does not regulate commerce, but compels individuals to purchase a product. “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” Reflecting the well-known broccoli analogy, Justice Roberts warned that the mandate was tantamount to permitting government to “address the diet problem by ordering everyone to buy vegetables.” Health insurance, however, is different because if healthy individuals refuse to buy it, they impose costs on society. The same cannot be said about buying vegetables or joining a gym. The mandate, moreover, does not compel commerce, but simply regulates the manner and timing of commerce. One day virtually everyone will require medical care, and someone must pay. “Free riders” reduce the insurance pool and impose costs ($62 billion in 2009) through higher taxes and insurance premiums. Thus, for only the third time since 1937, the court said Congress exceeded its commerce authority. In the previous 2 cases, the court ruled that Congress lacked the power to make gun possession within a school zone a federal offense, and to create a private civil remedy for women who had been subjected to violence. Both cases entailed purely local, noneconomic activities. Health care, however, represents 17% of the gross domestic product, with products (eg, medical records, pharmaceuticals, and insurance claims) traveling nationally and globally—clearly a regulation of commerce. The ACA’s Economic Viability. The mandate is integral to 2 pivotal, highly popular reforms: “guaranteed-issue” (insurers must cover all applicants) and “community-rating” (insurers cannot charge higher premiums based on health status). The mandate was designed to ensure the act’s economic sustainability. Without it, individuals would have an incentive to delay buying health insurance until they became ill. The critical question is whether a small tax will encourage healthy individuals to purchase health insurance. Not

Ethical Challenges of Preexposure Prophylaxis for HIV

Abstract: ON JULY 16, 2012, EMTRICITABINE/TENOFOVIR (Truvada; Gilead Sciences) became the first drug approved by the US Food and Drug Administration (FDA) for preexposure prophylaxis (PrEP) of human immunodeficiency virus (HIV) for adults at high risk. Clinical trials have demonstrated that daily use of oral antiretroviral drugs can reduce the risk of HIV acquisition through sexual intercourse. With 50 000 new HIV infections per year in the United States and 2 million per year worldwide, PrEP could become a major component of “combination prevention” along with condoms, counseling, testing, and treatment.

Hard, Soft, and Embedded: Implementing Principles on Promoting Responsible Sovereign Lending and Borrowing

Abstract: This paper, prepared for UNCTAD’s initiative on responsible sovereign lending and borrowing, considers concrete strategies for implementing the Principles. It draws on studies in soft law and new governance, and on the recent experience in promoting best practices in international finance, including project finance, extraction revenue management, foreign aid, sovereign investment, and sovereign borrowing in the capital markets. It recommends maintaining the current non-binding character of the Principles, while embedding implementation in multi-stakeholder arrangements for ongoing disclosure, assessment, interpretation, and adaptation. This strategy has the best chance of changing behavior in sovereign lending and borrowing by creating constituencies for implementation and sustained compliance.

The Coming Water Crisis: A Common Concern of Humankind

Abstract: This essay argues that fresh water, its availability and use, should now be recognized as ‘a common concern of humankind’, much as climate change was recognized as a ‘common concern of humankind’ in the 1992 United Nations Framework Convention on Climate Change, and conservation of biodiversity was recognized as a ‘common concern of humankind’ in the 1992 Convention on Biological Diversity. This would respond to the many linkages between what happens in one area with the demand for and the supply of fresh water in other areas. It would take into account the scientific characteristics of the hydrological cycle, address the growing commodification of water in the form of transboundary water markets and virtual water transfers through food production and trade, and respect the efforts to identify a human right to water.

Child abuse reporting: rethinking child protection

Abstract: What is the appropriate course for promoting prompt reporting of abuse, while still ensuring that respected individuals are not falsely accused? Ideally, state law would place a clear duty on all those in a position of trust to report promptly, not only to their supervisors but also to civil or criminal authorities. Given the vulnerability of young people under the supervision of a sports coach or clergyman, the law should require that abuse of adolescents, as well as children, be mandatorily reportable. The law should also have meaningful penalties for failure to report in cases in which there is good reason to suspect abuse. In the case of Penn State, failure to report is a criminal misdemeanor with limited legal ramifications. In addition to legal changes, institutions should develop internal, transparent processes to prevent and report abuse, such as employee background checks, impartial and anonymous reporting outlets, open-door policies, and ombudsmen charged with educating staff and uncovering abuse. Language: en

How Do the Elderly Fare in Medical Malpractice Litigation, Before and After Tort Reform? Evidence from Texas

Abstract: The elderly account for a disproportionate share of medical spending, but little is known about how they are treated by the medical malpractice system, or how tort reform affects elderly claimants. We compare paid medical malpractice claims brought by elderly plaintiffs in Texas during 1988-2009 to those brought by adult non-elderly plaintiffs. Controlling for healthcare utilization, elderly paid claims rose from 20% to 66% of the adult non-elderly rate, and mean and median payments per claim converged, although the elderly were far less likely to receive large payments. Tort reform strongly affected claim rates and payouts for both groups, but disproportionately reduced payouts to elderly claimants. We thus find evidence of convergence between the elderly and the adult non-elderly in both claim rates and payouts, which is interrupted by tort reform.

Pillars for progress on the right to health: harnessing the potential of human rights through a Framework Convention on Global Health.

Abstract: Ever more constitutions incorporate the right to health, courts continue to expand their right to health jurisprudence, and communities and civil society increasingly turn to the right to health in their advocacy. Yet the right remains far from being realized. Even with steady progress on numerous fronts of global health, vast inequities at the global and national levels persist, and are responsible for millions of deaths annually. We propose a four-part approach to accelerating progress towards fulfilling the right to health: 1) national legal and policy reform, incorporating right to health obligations and principles including equity, participation, and accountability in designing, implementing, and monitoring the health sector, as well as an all-of-government approach in advancing the public's health; 2) litigation, using creative legal strategies, enhanced training, and promotion of progressive judgments to increase courts' effectiveness in advancing the right to health; 3) civil society and community engagement, empowering communities to understand and claim this right and building the capacity of right to health organizations; and 4) innovative global governance for health, strengthening World Health Organization leadership on health and human rights, further clarifying the international right to health, ensuring sustained and scalable development assistance, and conforming other international legal regimes (e.g., trade, intellectual property, and finance) to health and human rights norms. We offer specific steps to advance each of these areas, including how a new global health treaty, a Framework Convention on Global Health, could help construct these four pillars.

Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development

Abstract: The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued that preservation lacks an organizing theory, imposes inauthentic consumer-friendly glosses on older structures, and inhibits architectural creativity. Although these critiques are as different as the cultural spaces inhabited by their authors (although both are professors at Harvard), both seemed to strike nerves, suggesting an underlying unease about how large a role preservation has come to play in urban development. This article assesses these critiques as part of an ongoing effort to make sense of historic preservation law.This article proceeds as follows: First, it presents Glaeser’s critique in detail, placing it within the context of his larger argument about what makes cities attractive and dynamic. Grappling with the strengths and weaknesses of Glaeser’s critique leads to a discussion of how preservation regulation actually works and clarification of some of the benefits it confers. Second, this Article will attempt to specify Koolhaas’s critique, connecting it to similar complaints about preservation by more linear thinkers. Weighing objections to the coherence or authenticity of preservation leads to further discussion of the role that preservation plays in the larger culture. This article concludes with a call for future research.

The Future Impact of Same-Sex Marriage: More Questions than Answers

Abstract: Same-sex relationships have already significantly altered family law, by leading to new formal relationship statuses and incorporation of the principle that both of a child’s legal parents can be of the same sex This essay explores further changes that may lie ahead as same-sex marriage debates increasingly affect both family law and the social meanings of marriage Marriage as an institution has changed most dramatically because of the cumulative effects of the last half-century of de-gendering family law Same-sex marriage – and perhaps even more so, the highly visible cultural debate over it – is contributing to this process The author argues that the greatest potential for changes in social meaning will arise in three areas for which there is empirical evidence of significant differences between gay and straight couples: division of household labor, sexual exclusivity, and childrearing In each, although recent data indicate some signs of converging behaviors between the two types of couples, major differences appear likely to continue While the number of same-sex couples in the population is too small to produce significant change in overall patterns of behavior, the issue of gay marriage has generated so much attention and debate that a mixed process of gay assimilation to and effect on the social meaning of marriage is a reasonable expectation As to future legal change, the author identifies three questions likely to arise in the relatively near future that will flow, directly or indirectly, from same-sex marriage: First, we may see an increasing uptake by different-sex couples of marriage equivalent and marriage alternative statuses (eg, domestic partnerships) that have grown out of LGBT rights efforts If present demographic trends continue, the group of different-sex couples most likely to seek access to these new statuses will be persons middle-aged or older Second, federal recognition of same-sex marriage, which will occur if the Defense of Marriage Act is invalidated or repealed, could significantly increase the number of same-sex couples who marry The end of DOMA is also likely to further complicate the law of interstate recognition, as more gay couples have their marriages recognized for federal law purposes, such as tax, but not under state laws that regulate divorce, custody and property division Since 60 per cent of same-sex marriages are performed for out-of-state residents, the complexity of federal-state conflict regarding recognition of particular marriages is likely to increase dramatically Lastly, the author questions whether the issue of “accidental procreation” that has become a theme in court decisions related to same-sex marriage may migrate to marriage law more generally In particular, she suggests that a more stringent set of rules expanding support obligations in marriages (whether of different- or same-sex spouses) in which children are born or adopted would better serve the purposes advanced by social conservatives who purport to argue on behalf of children’s welfare

The U.S. Criminal-Immigration Convergence and Its Possible Undoing

Abstract: The intensifying convergence of U.S. criminal law and immigration law poses fundamental structural problems. This convergence -- which manifests in the criminal prosecution of immigration law violators, in deportation of criminal law violators, and in a growing immigration enforcement and detention apparatus -- distorts criminal law incentives and drains enforcement resources, misguides immigration regulation, and undermines efforts to implement alternative immigration regulatory frameworks. This Article offers an account, informed by social psychological and literary theory, of why this convergence persists notwithstanding these problems, as well as how the convergence (and inherently associated problems) might be undone. The U.S. criminal-immigration convergence holds powerful sway, despite the fact that it does much harm and relatively little good, because it serves to relieve pervasive cognitive dissonance in the United States regarding immigration, specifically in relation to economic and racial concerns. Drawing on previously unexamined Immigration and Customs Enforcement memoranda, legislative history, and empirical studies of criminal-immigration enforcement, this Article critically engages the primary justifications of the convergence in immigration scholarship and policy discourse. Finally, it assesses two approaches to undoing the convergence.

Can an Old Dog Learn New Tricks? Applying Traditional Corporate Law Principles to New Social Enterprise Legislation

Abstract: Seven U.S. states have recently adopted the benefit corporation or the flexible purpose corporation — two novel corporate forms intended to house social enterprises, i.e., those ventures that pursue social and environmental missions along with profits. And yet, these corporate forms are not viable or sustainable if they do not attract social entrepreneurs or social investors due to the lack of understanding and inquiry into how traditional corporate law principles will be applied to them. This Article begins this necessary examination. As a first approach, this article assesses shareholder primacy and the shareholder wealth maximization norm in the context of the sale of an early-stage flexible purpose corporation. As the market for products and services produced by social enterprises grows, traditional “profit-maximizing” corporations, which may have given limited attention to their social or environmental outputs in the past, want a piece of this market share and can make a rapid market entrance by acquiring an established social enterprise. Using the lens of a corporate acquisition, this article argues that the shareholder wealth maximization norm must be rejected for flexible purpose corporations given the statute’s legislative history and a contractarian view of shareholder primacy where shareholders’ interests are both economic and non-economic. Nonetheless, rejection of the norm leaves a gap in directors’ accountability to shareholders. This article examines alternative accountability mechanisms, including employing a heightened standard of review to the sale of flexible purpose corporations.