Showing papers by "Georgetown University Law Center published in 2013"

Countering the Problem of Falsified and Substandard Drugs

Abstract: The adulteration and fraudulent manufacture of medicines is an old problem, vastly aggravated by modern manufacturing and trade. In the last decade, impotent antimicrobial drugs have compromised the treatment of many deadly diseases in poor countries. More recently, negligent production at a Massachusetts compounding pharmacy sickened hundreds of Americans. While the national drugs regulatory authority (hereafter, the regulatory authority) is responsible for the safety of a country's drug supply, no single country can entirely guarantee this today.The once common use of the term counterfeit to describe any drug that is not what it claims to be is at the heart of the argument. In a narrow, legal sense a counterfeit drug is one that infringes on a registered trademark. The lay meaning is much broader, including any drug made with intentional deceit. Some generic drug companies and civil society groups object to calling bad medicines counterfeit, seeing it as the deliberate conflation of public health and intellectual property concerns. Countering the Problem of Falsified and Substandard Drugs accepts the narrow meaning of counterfeit, and, because the nuances of trademark infringement must be dealt with by courts, case by case, the report does not discuss the problem of counterfeit medicines.

Effectiveness of a short-term mental health court: criminal recidivism one year postexit.

Abstract: This article investigated criminal recidivism 1 year postexit from a mental health court (MHC), which has, unlike prior MHCs studied, relatively short periods of court supervision. It benefits from a federal pretrial services agency that screens all arrestees for mental illness and dedicates a specialized supervision unit (SSU) to provide supervision and services while on pretrial release to all screened positive, including MHC participants. We compared criminal activity prior to key arrest with criminal activity post court disposition in MHC participants (N 408) and MHC-eligible mentally ill arrestees in SSU (N 687) receiving the same supervision and services while controlling for possible confounders. The proportion of MHC participants arrested was significantly lower in the year after MHC exit and significantly lower than that of the comparison group. They also averaged fewer rearrests and had a longer time to rearrest. MHC graduates made the greatest gains and accounted for the recidivism differences between MHC participants and the comparison group. This study adds to the accumulating evidence of the effectiveness of MHCs in reducing recidivism among offenders with severe mental illness.

Revisiting Sovereign Bankruptcy

Abstract: Sovereign debt crises occur regularly and often violently. Yet there is no legally and politically recognized procedure for restructuring the debt of bankrupt sovereigns. Procedures of this type have been periodically debated, but so far been rejected, for two main reasons. First, countries have been reluctant to give up power to supranational rules or institutions, and creditors and debtors have felt that there were sufficient instruments for addressing debt crises at hoc. Second, fears that making debt easier to restructure would raise the costs and reduce the amounts of sovereign borrowing in many countries. This was perceived to be against the interests of both the providers of both creditors and major borrowers.This report argues that both the nature and our understanding of sovereign debt problems have changed, over the course of the last decade, in a direction that creates a much stronger case for an orderly sovereign bankruptcy regime today than ten years ago. Pre-crisis policy mistakes are now recognized to be a much more severe problem for borrowing countries than the costs or limited availability of private financing. Recent court rulings – particularly a recent U.S. ruling that gives "holdout creditors" that decline a restructuring offer the right to interfere with payments to the creditors that accept such an offer. This will complicate efforts to resolve future debt crises on an ad hoc basis. Finally, sovereign debt crises are no longer just a problem in emerging markets, but a core concern in advanced countries as well – particularly in the Euro area. If the Euro is to survive, this will require both better ways to resolve debt crises and stronger, market-based incentives that prevent debt problems from occurring in the first place.To address these problems, policy proposals are presented at two levels: for the Euro area, and globally. A Euro area sovereign debt restructuring regime could be developed by amending the Treaty establishing the European Stability Mechanism (ESM). This would both restrict the scope for lending to highly indebted countries without also restructuring their debts, and protect Euro area members receiving ESM financial assistance from legal action byholdout creditors. At the global level, a number of proposals are discussed, ranging from a coordinated introduction of "aggregate collective action clauses" that would allow a supermajority of bondholders across all bonds to amend bond payment terms to an amendment of the IMF articles that would limit the legal remedies of holdouts when a debt restructuring proposal has been accepted both by a majority of creditors and endorsed by the IMF.

Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice

Abstract: International law has responded weakly to the inequities in health care, public health, and the broader determinates of health that collectively cause the greatest loss of lives and human potential every year. Approximately one-third of global deaths can be attributed to enduring and unconscionable inequities. Despite significant progress in improving global health over the past several decades, these inequities persist. Current global governance for health is inadequate to the task of resolving these inequities, from lack of accountability and enforcement to inadequate funding and the absence of leadership required to respond to the threats to health that arise from other sectors. The risk of a persisting global health underclass looms large.Human rights law, with its universally accepted right to health, can underpin new norms and structures to dramatically reduce health inequities and ameliorate the factors that give rise to them. Four fundamental questions can clarify national and international responsibilities under the right to health and offer guidance to new legal instruments to resolve these health inequities:1. What are the health services and goods guaranteed to every human being under the right to health?2. What do states owe for the health of their own populations?3. What responsibility do states have for improving the health of people beyond their borders?4. What kind of global governance mechanisms are required to guarantee that all states live up to their mutual responsibilities to provide health goods and services to all people?To capture the answers to these questions, we offer ideas for the contents and structure of a new global treaty grounded in the right to health and with the principal purpose of ameliorating health disparities among the world’s rich and poor. This Framework Convention on Global Health (FCGH) would set global health norms and priorities, with a robust vision of making available and accessible to all: universal health care, public health measures, and the social determinants required for good health.The FCGH would embed equity as a key principle in binding international law; establish targets and benchmarks, tailored to individual countries through inclusive and flexible processes, including the critical involvement of civil society and communities; ensure sustainable funding backed by clear national and international responsibilities; strengthen global governance for health including by responding to health threats in other sectors and strengthening the World Health Organization; and establish a robust regime of accountability at local and national levels along with effective enforcement and compliance mechanisms for the FCGH itself.The path towards an FCGH will be arduous, with multiple barriers posed by politics and special interests. However, the treaty offers an innovative path we should forge, propelled by social mobilization. An inclusive process will be central in establishing the treaty, with a campaign driven by social movements committed to the right to health.

Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience

Abstract: This is the table of contents and introductory chapter to our book, Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience (Oxford University Press, forthcoming 2013). The book explores several philosophical issues at the intersection of law and neuroscience. It examines and critically assesses arguments for an increased role for neuroscience at the levels of legal theory, legal doctrine, and legal proof. The theoretical issues include general jurisprudential questions about the nature of law, moral and economic decision making, and justifications for criminal punishment. The doctrinal issues focus on criminal law and criminal procedure and include: mens rea, actus reus, the insanity defense, the Fourth Amendment, the Fifth Amendment privilege against self-incrimination, and due process. The issues of legal proof focus on different types of brain-based lie detection.

Trust Darknet: Control and Compromise in the Internet's Certificate Authority Model

Abstract: For more than a decade, Internet users have relied upon digital certificates issued by certificate authorities to encrypt and authenticate their most valuable communications. Computer security experts have lambasted weaknesses in the system since its inception. A series of recent exploits have brought several problems back into stark focus. This paper describes some of the proposed technology-based improvements, as well as the structural shortcomings of the trust model – legal, economic, and organizational. We explore some of these structural defects in the context of lessons learned over the lifetime of the certificate authority trust model, and propose first steps toward fixes and next steps for study.

Tackling the global NCD crisis: innovations in law and governance.

Abstract: 35 million people die annually of non-communicable diseases (NCDs), 80% of them in low- and middle-income countries - representing a marked epidemiological transition from infectious to chronic diseases and from richer to poorer countries. The total number of NCDs is projected to rise by 17% over the coming decade, absent significant interventions. The NCD epidemic poses unique governance challenges: the causes are multifactorial, the affected populations diffuse, and effective responses require sustained multi-sectorial cooperation. The authors propose a range of regulatory options available at the domestic level, including stricter food labeling laws, regulation of food advertisements, tax incentives for healthy lifestyle choices, changes to the built environment, and direct regulation of food and drink producers. Given the realities of globalization, such interventions require global cooperation. In 2011, the UN General Assembly held a High-level meeting on NCDs, setting a global target of a 25% reduction in premature mortality from NCDs by 2025. Yet concrete plans and resource commitments for reaching this goal are not yet in the offing, and the window is rapidly closing for achieving these targets through prevention - as opposed to treatment, which is more costly. Innovative global governance for health is urgently needed to engage private industry and civil society in the global response to the NCD crisis.

The Receding Tide of Medical Malpractice Litigation Part 1: National Trends

Abstract: The U.S. has experienced three medical malpractice (“med mal”) crises in the past forty years. In response, thirty-one states now have caps on non-economic or total damages. Researchers have studied the impact of these caps, relative to control states without caps, but have not studied trends in no-cap states or overall national trends. We find that the per-physician rate of paid med mal claims has been dropping for 20 years and in 2012 is less than half the 1992 level. Lawsuit rates, in the states with available data, are also declining, at similar rates. “Small” paid claims (payout $50,000) have been dropping since 2001. Payout per large paid claim was roughly flat. Payout per physician have been dropping since 2003, and by 2012 were 48% below their 1992 level. The “third wave” of damage cap adoptions over 2003-2006 contributed to this trend, but there are also large declines in no-cap states.A companion article, The Receding Medical Malpractice Part 2: Effect of Damage Caps, is available at: http://ssrn.com/abstract=2285230.

Against Endowment Theory: Experimental Economics and Legal Scholarship

Abstract: Endowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation. Today, appeals to a generic “endowment effect” can be found throughout the legal literature. More recent experimental results, however, suggest that the empirical evidence for endowment theory is weak at best. When the procedures used in laboratory experiments are altered to rule out alternative explanations, the “endowment effect” disappears. This and other recent evidence suggest that mere ownership does not affect willingness to trade or exchange. Many experimental economists no longer ascribe to endowment theory. Legal scholars, however, continue to rely on endowment theory to predict legal entitlements’ probable effects on expressed valuations. That reliance is no longer warranted. Endowment theory’s influence in legal scholarship provides important lessons about how legal scholars and policymakers should, and should not, use results from experimental economics.

How Law Made Silicon Valley

Abstract: Explanations for the success of Silicon Valley focus on the confluence of capital and education. In this article, I put forward a new explanation, one that better elucidates the rise of Silicon Valley as a global trader. Just as nineteenth century American judges altered the common law in order to subsidize industrial development, American judges and legislators altered the law at the turn of the Millennium to promote the development of Internet enterprise. Europe and Asia, by contrast, imposed strict intermediary liability regimes, inflexible intellectual property rules, and strong privacy constraints, impeding local Internet entrepreneurs. The study challenges the conventional wisdom that holds that strong intellectual property rights undergird innovation. While American law favored both commerce and speech enabled by this new medium, European and Asian jurisdictions attended more to the risks to intellectual property rights-holders and, to a lesser extent, ordinary individuals. Innovations that might be celebrated in the United States could lead to jail in Japan. I show how American companies leveraged their liberal home base to become global leaders in cyberspace. Nations seeking to incubate their own Silicon Valley must focus not only on money and education, but also a law that embraces innovation.

The Commercial Real Estate Bubble

Abstract: Two parallel real estate bubbles emerged in the United States between 2004 and 2008, one in residential real estate, the other in commercial real estate. The residential real estate bubble has received a great deal of popular, scholarly, and policy attention. The commercial real estate bubble, in contrast, has largely been ignored.This Article shows that the commercial real estate price bubble was accompanied by a change in the source of commercial real estate financing. Starting around 1998, securitization became an increasingly significant part of commercial real estate financing. The commercial mortgage securitization market underwent a major shift in 2004, however, as the traditional buyers of subordinated commercial real estate debt were outbid by collateralized debt obligations (CDOs). Savvy, sophisticated, experienced commercial mortgage securitization investors were replaced by investors who merely wanted “product” to securitize. The result was a decline in underwriting standards in commercial mortgage backed securities (CMBS).The commercial real estate bubble holds important lessons for understanding the residential real estate bubble. Unlike the residential market, there is almost no government involvement in commercial real estate. The existence of the parallel commercial real estate bubble presents a strong challenge to explanations of the residential bubble that focus on government affordable housing policy, the Community Reinvestment Act, and the role of Fannie Mae and Freddie Mac.

Growing families in a shrinking world: legal and ethical challenges in cross-border surrogacy

Abstract: Crossing national borders to have children is a rapidly growing phenomenon, fuelled by restrictions on access and technologies in some countries and for some patients, by high costs in others, and all generating a burgeoning multibillion dollar international industry. Cross-border gestational surrogacy is one form of family building that challenges legal, policy and ethical norms between countries and puts both intended parents and gestational surrogates at risk, and can leave the offspring of these arrangements vulnerable in a variety of ways, including parent-child, immigration and citizenship status. The widely varying political, religious and legal views amongst countries make line drawing and rule making challenging. This article reviews recent court decisions about and explores the legal dimensions of cross-border surrogacy.

Bloomberg's Health Legacy: Urban Innovator or Meddling Nanny?

Abstract: Michael Bloomberg leaves the mayoralty of New York City, with his health legacy is bitterly contested. The public health community views him as an urban innovator — a rare political and business leader willing to fight for a built environment conducive to healthier, safer lifestyles. To his distractors, however, Bloomberg epitomizes a meddling nanny — an elitist dictating to largely poor and working class people about how they ought to lead their lives. His policies have sparked intense public, corporate, and political ire — critical of sweeping mayoral power to socially engineer the city and its inhabitants.Here, I seek to show how Bloomberg has fundamentally changed public health policy and discourse. He has used the engine of government to make New York City a laboratory for innovation — raising the visibility of public health, testing policy effectiveness, and probing the boundaries of state power. The courts have blocked some of his boldest initiatives, but he offered a paradigm for the "new public health" — reaching beyond infectious diseases to upstream risk factors in everyday life and the human habitat. I also critically probe various arguments designed to derail his policies (e.g., questions of policy consistency, scientific evidence, First Amendment claims, and civil liberties) along with the overarching charge of unjustified paternalism.The article discusses key Bloomberg policies, including those in the areas of diet and nutrition (e.g., menu labeling, trans fat ban, and the soda portion limit); physical activity (e.g., bike and walking paths, safe school routes, parks); and tobacco control (smoke free laws, cigarette taxes, and advertising restrictions). A graphic categorizing his major health policies appears at O'Neill Institute Online.Please see the title page for a link to the graphic categorizing his major health policies.

Of Law and the Revolution

Abstract: The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws annulled and then reclaimed in another form; in fact so much so, that to trace the historical unfolding of the Egyptian revolution, one would be wise to use the Gazette and law reports as one’s primary guide through the maze of events. It is hard to miss the fact that in the case of Egypt, no sooner the public space opened up for the political as an autonomous sphere – one that is only possible through genuine democratic practice – than that sphere became annexed by the legal.

Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice

Abstract: Global health inequities cause nearly 20 million deaths annually, mostly among the world's poor. Yet international law currently does little to reduce the massive inequalities that underlie these deaths. This Article offers the first systematic account of the goals and justifications, normative foundations, and potential construction of a proposed new global health treaty, a Framework Convention on Global Health (FCGH), grounded in the human right to health. Already endorsed by the United Nations Secretary-General, the FCGH would reimagine global governance for health, offering a new, post-Millennium Development Goals vision. A global coalition of civil society and academics has formed the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI) to advance the FCGH.

Stemming the global trade in falsified and substandard medicines

Abstract: WHEN HIPPOCRATES ADVISED PHYSICIANS TO never give a deadly drug, he assumed they would know for sure that the medicines they prescribed were safe. Today, criminals and unscrupulous manufacturers have permeated the global pharmaceutical market, calling into question this basic assumption of clinical practice. Between November 2012 and March 2013, an injectable drug compounded under unhygienic conditions at the New England Compounding Pharmacy was linked to more than 700 illnesses and 50 deaths. In poor countries, where drug regulatory oversight is weaker, the problem is worse, but blends with the background noise of high mortality and strained health systems. Only in rare cases, as when 120 Pakistanis died after taking a carelessly made batch of isosorbide mononitrate, do people in lowand middle-income countries learn of their vulnerability. The pharmaceutical trade is transnational, lucrative, and extensive; the United Nations Office on Drugs and Crime estimates the value of the illegal antimalarial drug market in west Africa alone exceeds $400 million. These products pose immense dangers. Falsified and substandard drugs may contain no active pharmaceutical ingredient or contain the active ingredient at subtherapeutic doses. Poor-quality antimicrobial drugs are a major problem in Southeast Asia and sub-Saharan Africa, where they contribute to drug resistance, reducing a drug’s effectiveness. Society must bear the cost of developing alternate therapies. Poor-quality products increase health care costs, while causing patients to lose confidence in the health system. In a report released recently, an Institute of Medicine expert committee examined the causes of, and solutions to, the problem of falsified and substandard drugs in the United States and globally.

After the Honeymoon Reflections on the Current State of International Criminal Justice

Abstract: At the turn of the millennium, international criminal justice (ICJ) was in its honeymoon; today it seems that the honeymoon is over.What comes after the honeymoon? By now we have learned that ICJ cannot bypass politics and become an ordinary part of the rule of law. But normality was never a realistic aim for ICJ, which aims at the world’s most abnormal crimes. The most important goal of ICJ is a radical one: transforming the world’s political imagination to de-sanctify violence committed in the name of state or group, so that it comes to be regarded as mere crime. By this measure, the most important achievement of ICJ is positive complementarity, and the most reactionary is further strengthening of the doctrine of state immunity.

What could a strengthened right to health bring to the post-2015 health development agenda?: interrogating the role of the minimum core concept in advancing essential global health needs.

Abstract: Background Global health institutions increasingly recognize that the right to health should guide the formulation of replacement goals for the Millennium Development Goals, which expire in 2015. However, the right to health’s contribution is undercut by the principle of progressive realization, which links provision of health services to available resources, permitting states to deny even basic levels of health coverage domestically and allowing international assistance for health to remain entirely discretionary.

Injunctions in Sovereign Debt Litigation

Abstract: Injunctions against foreign sovereigns have come under criticism on comity and enforcement grounds. We argue that these objections are overstated. Comity considerations are important but not dispositive. Enforcement objections assign too much significance to the court’s inability to impose meaningful contempt sanctions, overlooking the fact that, when a foreign sovereign is involved, both money judgments and injunctions are enforced through what amounts to a court-imposed embargo. This embargo discourages third parties from dealing with the sovereign and, if sufficiently costly, can induce the sovereign to comply. Nevertheless, we are skeptical about injunctions in sovereign debt litigation. They are prone to dramatic spillover effects precisely because they cannot reach their primary target, the sovereign government. Recent decisions in NML v. Argentina illustrate the way in which a court’s inability to compel compliance by the sovereign may lead it to impose dramatic and potentially unwarranted costs on third parties, turning traditional equitable analysis on its head.

Black Male Exceptionalism? The Problems and Potential of Black Male-Focused Interventions

Abstract: “Black male exceptionalism” is the premise that African American men fare more poorly than any other group in the United States. The discourse of Black male exceptionalism presents African American men as an “endangered species.” Some government agencies, foundations, and activists have responded by creating “Black male achievement” programs. There are almost no corresponding “Black female achievement” programs. Yet empirical data does not support the claim that Black males are burdened more than Black females. Without attention to intersectionality, Black male achievement programs risk obscuring Black females and advancing patriarchal values. Black male achievement programs also risk reinforcing stereotypes that African American males are violent and dangerous. An intersectional approach would create space for Black male focused interventions, but require parity for Black female programs.

Safeguards for tobacco control: options for the TPPA.

Abstract: I. LEGACY OF 20TH CENTURY TRADE POLICYWith tobacco trade, the past is prologue. In the 1980s, the U.S. government used domestic trade remedies ("Super 301") to pry open markets for U.S. tobacco companies.1 The targets included Japan, South Korea, Taiwan, and Thailand.2 A grateful tobacco industry donated a renovation of the Treaty Room in the U.S. Department of State, declaring at the dedication: "Tobacco is intimately and historically associated with American diplomacy."3Thailand responded by banning imported cigarettes on grounds that the imports were more addictive and marketing of imports was driving up consumption. The United States then challenged Thailand for violating the General Agreement on Tariffs and Trade (GATT). The GATT panel ruled against Thailand, finding that the import ban failed to satisfy the health exception of GATT Article XX.4Studies showed that liberalizing tobacco trade in the 1990s resulted in lower tariffs, lower prices, aggressive marketing, and greater tobacco use-in the range of ten percent for all four countries.5 The same results held true for China, India, Indonesia, Malaysia, Pakistan, and the Philippines.6 By 1997, the mounting evidence of a "tobacco epidemic"-and the overt connection with trade agreements- prompted an apparent shift in U.S. policy. The U.S. Congress adopted the Durbin and Doggett Amendments, which prohibit federal agencies from promoting "the sale or export of tobacco or tobacco products" or seeking "the reduction or removal by any foreign country of restrictions on the marketing of tobacco or tobacco products, except for restrictions which are not applied equally to all tobacco or tobacco products of the same type."7 In 2001, President Clinton issued Executive Order 19393 to make clear that this policy applies to all executive agencies and "the implementation of international trade policy."8 Limiting trade negotiators aimed to promote coherence between health and trade policy.9In 2003, congressional leaders documented how the Office of U.S. Trade Representative (USTR) negotiated Korean tariff reductions on behalf of Philip Morris International (PMI), agreed to zero tobacco tariffs on the last day of negotiations on the U.S.-Chile Free Trade Agreement (FTA), and proposed ten of eleven amendments sought by PMI to weaken the draft Framework Convention on Tobacco Control (FCTC).10 Since the Doggett Amendment has been in effect, the USTR has negotiated with eighteen countries to eliminate tariffs on processed tobacco leaf and cigarettes.11 The United States continued to expand market access for tobacco-related services and extended investor rights to tobacco companies. Writing for the Council on Foreign Relations, Thomas Bollyky summarizes the legacy of twentieth century trade policy for tobacco:Tobacco companies are aggressively exploiting trade and investment agreements to expand their market in low- and middle-income countries. Lower tariffs reduce the price of imported cigarettes in countries without good taxation systems to compensate. Multinational tobacco companies use dispute resolution ... to block tobacco marketing and labeling regulations far more modest than those in the United States. Young women, who have historically smoked less than men in most parts of the developing world, are a major target of industry marketing campaigns.12Now the U.S. government is leading negotiations among eleven countries on a Trans-Pacific Partnership Agreement (TPPA), "a true 21st century trade agreement" that "will reflect U.S. priorities and values."13 The open question is whether a priority is to support tobacco trade as it contributes to 6 million deaths per year- one billion deaths in a twenty-first century epidemic.14 The TPPA has six chapters that might provide material support to the tobacco industry.15As trade agreements evolve through regional negotiations, the first global health treaty is emerging as a force to exercise, rather than restrict, regulatory authority. …

The Consumer Financial Protection Bureau: An Introduction

Abstract: This Article provides a legal and political overview of the CFPB, covering its history, structure, powers, and ongoing politics.

Tax, Command -- or Nudge?: Evaluating the New Regulation

Abstract: This Article compares for the first time the relative economic efficiency of “nudges” and other forms of behaviorally-inspired regulation against more common policy alternatives, such as taxes, subsidies, or traditional quantity regulation Environmental economists and some legal commentators have dismissed nudge-type interventions out of hand for their failure to match the revenues and informational benefits taxes can provide Similarly, writers in the law and economics tradition argue that fines are generally superior to non-pecuniary punishments Drawing on prior work in the choice-of-instruments literature, and contrary to this popular wisdom, I show that nudges may out-perform fines, other Pigouvian taxes, or subsidies in some contexts These same arguments may also imply the superiority of some traditional “command and control” regulations over their tax or subsidy alternatives I then apply these lessons to a set of contemporary policy controversies, such as New York City’s cap on beverage portion sizes, climate change, retirement savings, and charitable contributions

Teaching Law: Justice, Politics, and the Demands of Professionalism

Abstract: Teaching Law re-imagines law school teaching and scholarship by going beyond crises now besetting the legal academy and examining deeper and longer-lasting challenges. The book argues that the legal academy has long neglected the need to focus teaching and scholarship on the ideals of justice that law fitfully serves, the political origins of law, and the development of a respectful but critical relationship with the legal profession. It suggests reforms to improve the quality of legal education and responds to concerns that law schools eschew the study of justice, rendering students amoralist; that law schools slight the political sources of law, particularly in legislative action; and that law schools have ignored the profession entirely. These areas of neglect have impoverished legal teaching and scholarship as the academy is refashioned in response to current financial exigencies, and addressing them is long overdue.

Cleanliness is Next to Morality, Even for Philosophers

Abstract: A number of studies have shown that seemingly morally irrelevant factors influence the moral judgments of ordinary people. Some argue that philosophers are experts and are significantly less susceptible to such effects. We tested whether an unconscious cleanliness prime – the smell of Lysol – affects the judgments of both non-philosophers and professional philosophers. Our results suggest that the direction of cleanliness effects depends both on the respondent and whether the question is framed in the second or third person. They also provide evidence that cleanliness cues affect the moral judgments of both non-philosophers and philosophers, challenging the philosopher-as-expert view.

A Solution Hiding in Plain Sight: Special Education and Better Outcomes for Students with Social, Emotional, and Behavioral Challenges

Abstract: This Article will contribute to the ongoing dialogue about special education and the IDEA in two ways. First, it will describe patterns that have emerged from our work with individual children and families that shed light on how common IDEA implementation failures increase the risk of poor outcomes for students with social, emotional and behavioral challenges. Critiques of the law and proposals to amend it should be grounded in an understanding of exactly how and why it is falling short of meeting its promise to these children. Our hope is that mapping the common implementation failures we have seen in our cases will advance this understanding - at least with respect to the particular population of students for whom we advocate - and will help guide the development of public policy. Second, this Article will assert that fixing these common implementation failures is a critical reform and a worthwhile investment of public time, money and attention. While proposing specific legislative remedies or strategies is beyond the scope of this Article, we will suggest some priorities for reform that appear warranted based on our work.

Doing Good Instead of Doing Well? What Lawyers Could be Doing in a World of 'Too Many' Lawyers

Abstract: This paper explores some of the misalignment in the legal profession in terms of allocation to particular parts of the profession. The paper suggests that there are not “too many lawyers,” but that lawyers could and should be doing other things, beyond conventional forms of legal representation, both for access to justice, and for transformations of the legal system and human problem solving. Lawyers can perform different roles in dispute resolution (mediating, arbitrating, negotiating, as well as litigating), including performing design functions for organizations and other sites of iterated disputes, advising individuals and entities about how to handle and “manage” conflict in order to actually reduce the need for conventional legal services. The paper explores issues of what constitutes “legal knowledge and expertise” and how such knowledge might be deployed to solve complex social and legal problems outside of conventional legal professional boundaries. Contrasts are made with other areas of expertise and the restructuring of professional knowledge in other fields such as business consulting and architecture. The paper concludes by suggesting that lawyers and legal educators need to proactively reframe what is considered to be legal work and legal education for new ways of legal and human problem solving to be studied and learned.Este articulo analiza algunos desajustes en la distribucion de determinadas partes de la abogacia. Se sugiere que no hay "demasiados abogados", sino que los abogados podrian y deberian estar haciendo otras cosas, mas alla de los sistemas convencionales de representacion legal, tanto en el acceso a la justicia, como en las transformaciones del sistema juridico y la resolucion de conflictos humanos. Los abogados pueden asumir diferentes papeles en la resolucion de conflictos (mediacion, arbitraje, negociacion, o defensa juridica), incluyendo el diseno de funciones para organizaciones y otras instituciones dedicadas a las disputas, aconsejando a individuos y entidades sobre como manejar y “gestionar” los conflictos, con el fin de reducir de forma real la necesidad de los servicios juridicos convencionales. El articulo explora los asuntos relacionados con "el conocimiento y la experiencia juridica" y como se puede utilizar este conocimiento para resolver problemas sociales y legales complejos que quedan fuera de los limites profesionales juridicos convencionales. Se comparan con otras areas de conocimiento y con la reestructuracion de los conocimientos profesionales en otros campos, como las empresas consultoras y de arquitectura. El articulo concluye sugiriendo que abogados y profesores de derecho deben replantear de forma proactiva lo que se considera trabajo legal y educacion juridica, para estudiar y aprender nuevas formas de resolver conflictos humanos y legales.

An international legal strategy for alcohol control: not a framework convention—at least not yet

Abstract: Aims The perceived success of the Framework Convention on Tobacco Control (FCTC) in influencing national and globalpublichealthpolicieshasledtogrowinginterestinpromulgatingnewinternationallegalinstrumentstoaddress globalhealthissues—includingcallsforaFrameworkConventiononAlcoholControl(FCAC).Methods Despitebroad support in the public health community, the authors caution that an analysis of the value of lawmaking for alcohol control cannot rest solely on the character of the underlying public health challenge and the similarities between alcohol control and tobacco control. Other factors must be considered, including the relative political feasibility for global health lawmaking. The potential contribution of non-binding international legal instruments to advancing global alcohol control, in particular, deserves strong consideration. Results The authors propose a gradual international legal strategy for alcohol control, starting with a non-binding code of practice focusing on areas of critical concern with wide political consensus, leading over time to a comprehensive binding treaty. Although often dismissed as ineffective relative to treaties, non-binding international legal instruments have particular strengths and can create both norms and processes that impact the behavior of states and other actors, overcoming a number of limitations of more rigid legally binding strategies. Conclusions Ultimately, the authors contend that the negotiation and adoption of a non-binding international legal instrument as a first step in a long-run legal strategy offers a more politically realistic, and potentially superior, alternative to immediate efforts to achieve a Framework Convention on Alcohol

On Constitutional Disobedience

Abstract: Introduction:The Gaudy Contradictions of American Constitutionalism Chapter Two: The Argument Briefly Stated Chapter Three: Obedience over Time Chapter Four: The Banality of Constitutional Violation Chapter Five: Disobedience and Freedom Chapter Six Ordinary Laws and Extraordinary Arguments

Human Rights Pragmatism and Human Dignity

Abstract: Human rights sound a lot like moral rights: rights that we have because we are human. Many philosophers think it follows that the list of international human rights must therefore be founded on some philosophical account of moral rights or of human dignity. More recently, other philosophers have rejected this foundationalist picture of international human rights (“foundationalist” meaning that moral rights are the foundation of international human rights). These critics argue that international human rights need no philosophical foundation; instead, we should look to the actual practices of human rights: the practices of international institutions, tribunals, NGOs, monitors, and activists. I call this approach “human rights pragmatism.” It is pragmatism in that it puts practice rather than theory in the driver’s seat, and denies the need for theoretical foundations for international legal human rights.In “Why International Legal Human Rights?” Allen Buchanan offers a forceful pragmatist critique of foundationalism, which he calls the “Mirroring View:” that international legal human rights must mirror moral rights. Buchanan demonstrates that there are reasons for establishing a regime of international legal human rights that have nothing to do with the Mirroring View. My paper is a response to Buchanan’s. I agree with Buchanan’s pragmatist critique of foundationalism, but I argue that without some connection between international legal human rights and moral rights grounded in human dignity, a regime of international legal human rights will fail on its own terms. The paper explores what that connection is, and explains why focusing on human dignity is essential on pragmatist, anti-foundationalist grounds.