Showing papers by "Georgetown University Law Center published in 2016"

Big Data's Disparate Impact

Abstract: Advocates of algorithmic techniques like data mining argue that these techniques eliminate human biases from the decision-making process. But an algorithm is only as good as the data it works with. Data is frequently imperfect in ways that allow these algorithms to inherit the prejudices of prior decision makers. In other cases, data may simply reflect the widespread biases that persist in society at large. In still others, data mining can discover surprisingly useful regularities that are really just preexisting patterns of exclusion and inequality. Unthinking reliance on data mining can deny historically disadvantaged and vulnerable groups full participation in society. Worse still, because the resulting discrimination is almost always an unintentional emergent property of the algorithm’s use rather than a conscious choice by its programmers, it can be unusually hard to identify the source of the problem or to explain it to a court.This Essay examines these concerns through the lens of American antidiscrimination law — more particularly, through Title VII’s prohibition of discrimination in employment. In the absence of a demonstrable intent to discriminate, the best doctrinal hope for data mining’s victims would seem to lie in disparate impact doctrine. Case law and the Equal Employment Opportunity Commission’s Uniform Guidelines, though, hold that a practice can be justified as a business necessity when its outcomes are predictive of future employment outcomes, and data mining is specifically designed to find such statistical correlations. Unless there is a reasonably practical way to demonstrate that these discoveries are spurious, Title VII would appear to bless its use, even though the correlations it discovers will often reflect historic patterns of prejudice, others’ discrimination against members of protected groups, or flaws in the underlying dataAddressing the sources of this unintentional discrimination and remedying the corresponding deficiencies in the law will be difficult technically, difficult legally, and difficult politically. There are a number of practical limits to what can be accomplished computationally. For example, when discrimination occurs because the data being mined is itself a result of past intentional discrimination, there is frequently no obvious method to adjust historical data to rid it of this taint. Corrective measures that alter the results of the data mining after it is complete would tread on legally and politically disputed terrain. These challenges for reform throw into stark relief the tension between the two major theories underlying antidiscrimination law: anticlassification and antisubordination. Finding a solution to big data’s disparate impact will require more than best efforts to stamp out prejudice and bias; it will require a wholesale reexamination of the meanings of “discrimination” and “fairness.”

The International Health Regulations: The Governing Framework for Global Health Security

Abstract: Policy Points: The International Health Regulations (IHR) are the governing framework for global health security yet require textual and operational reforms to remain effective, particularly as parallel initiatives are developed. The World Health Organization (WHO) is the agency charged with oversight of the IHR, and its leadership and efficient functioning are prerequisites for the effective implementation of the IHR. We reviewed the historical origins of the IHR and their performance over the past 10 years and analyzed all of the ongoing reform panel efforts to provide a series of politically feasible recommendations for fundamental reform. This article offers proposals for fundamental reform—with politically feasible pathways—of the IHR, their operations and implementation, WHO oversight, and State Party conformance. Context The International Health Regulations (IHR) have been the governing framework for global health security for the past decade and are a nearly universally recognized World Health Organization (WHO) treaty, with 196 States Parties. In the wake of the Ebola epidemic, major global commissions have cast doubt on the future effectiveness of the IHR and the leadership of the WHO. Methods We conducted a review of the historical origins of the IHR and their performance over the past 10 years and analyzed all of the ongoing reform panel efforts to provide a series of politically feasible recommendations for fundamental reform. Findings We propose a series of recommendations with realistic pathways for change. These recommendations focus on the development and strengthening of IHR core capacities; independently assessed metrics; new financing mechanisms; harmonization with the Global Health Security Agenda, Performance of Veterinary Services (PVS) Pathways, the Pandemic Influenza Preparedness Framework, and One Health strategies; public health and clinical workforce development; Emergency Committee transparency and governance; tiered public health emergency of international concern (PHEIC) processes; enhanced compliance mechanisms; and an enhanced role for civil society. Conclusions Empowering the WHO and realizing the IHR's potential will shore up global health security—a vital investment in human and animal health—while reducing the vast economic consequences of the next global health emergency.

The Emerging Zika Pandemic: Enhancing Preparedness

Abstract: The Zika virus (ZIKV), a flavivirus related to yellow fever, dengue, West Nile, and Japanese encephalitis, originated in the Zika forest in Uganda and was discovered in a rhesus monkey in 1947. The disease now has “explosive” pandemic potential, with outbreaks in Africa, Southeast Asia, the Pacific Islands, and the Americas. Since Brazil reported Zika virus in May 2015, infections have occurred in at least 20 countries in the Americas. Puerto Rico reported the first locally transmitted infection in December 2015, but Zika is likely to spread to the United States. The Aedes species mosquito (an aggressive daytime biter) that transmits Zika virus (as well as dengue, chikungunya, and yellow fever) occurs worldwide, posing a high risk for global transmission. Modeling anticipates significant international spread by travelers from Brazil to the rest of the Americas, Europe, and Asia. What steps are required now to shore up preparedness in the Americas and worldwide?

Employment Rights in the Platform Economy: Getting Back to Basics

Abstract: The employment status of workers for “platform economy” firms such as Uber, Lyft, TaskRabbit and Handy has become a significant legal and political issue. Lawsuits against several such companies allege that they have misclassified workers as independent contractors to evade employment law obligations. Various lawmakers and commentators, pointing to the complexity of existing tests for employment and the costs of employment duties, have responded with proposals to limit platform companies’ liability. This article steps into such debates, using the status of Uber drivers as a test case. It argues that Uber drivers may not fall neatly into either the “employee” or the “independent contractor” category under existing tests. Nevertheless, an important principle underlying those tests — the anti-domination principle — strongly indicates that the drivers are employees. That principle also indicates that proposals to limit platform economy firms’ liabilities are premature at best and misguided at worst.

Estimating Risk Preferences in the Field

Abstract: We survey the literature on estimating risk preferences using field data. We concentrate our attention on studies in which risk preferences are the focal object and estimating their structure is the core enterprise. We review a number of models of risk preferences — including both expected utility (EU) theory and non-EU models — that have been estimated using field data, and we highlight issues related to identification and estimation of such models using field data. We then survey the literature, giving separate treatment to research that uses individual-level data (e.g., property insurance data) and research that uses aggregate data (e.g., betting market data). We conclude by discussing directions for future research.

Between truth and power

Abstract: The call to ‘speak truth to power’, now employed most frequently as a banal protest trope or a generalized call to action, originates in the title of a pamphlet in which intellectual leaders of the Quaker faith opposed the ongoing Cold War and advocated its peaceful resolution. They offered an account of the polarization of the geopolitical landscape that moved beyond the continuing threat of horrific violence to reckon with what a contemporary economist might call the opportunity costs of militarization. Those costs were both moral and material; resources devoted to the production and strategic deployment of expensive weapons were resources that could not be devoted to improving standards of living for the world’s neediest people. For the writers, the most important kind of power was the power to choose between using American might to achieve military domination and using it to advance the cause of human wellbeing. The pamphlet authors’ appeal to the power to choose between domination andhuman flourishing remains fundamental, and yet their conceptions of both the exercise of domination and the exercise of principled resistance now seem dated in one critical respect. To understand both domination and resistance in the twenty-first century, we must take account of the ways that networked information technologies mediate the ongoing dialogue between truth and power. That relationship cannot be understood via simple deterministic equivalencies. Arguments about the freedom-enhancing potential of the network too often rely on a conception of networked information technologies as inherently connective and egalitarian in their operation, but they are neither. Between truth and poweris the code – the technical infrastructures that facilitate information flows between people, and between people and the entities that wield power in their lives – and the code has fractal effects on both power and truth. Code can become a means for resisting domination or a vehicle for embedding it, but even that formulation is too simple. Through its capacities to authorize, exclude and modulate information flows, code can become a means for multiplying and extending power, and for privatizing and fragmenting truth. The problem of control over information flows thus emerges as an importantvantage point from which to interrogate ‘the idea of Power itself, and its impact on [twenty-first] century life’. Although states do attempt to control information flows in various ways, this problem does not map neatly to the exercise of state power, nor does it map to traditional conceptions of power as (capacity for) physical force. Questions about the extent of private control of information flows also have become flash points for public anger about the capacity for self-determination, or lack thereof, enjoyed by ordinary people. Such anger is not frivolous; access to information and control of information are intimately related to the choice between domination and flourishing. Debates about state censorship are highly visible, but they represent only one piece of a larger puzzle, which concerns the extent to which global circuits of information flow are settling into patterns that serve larger constellations of economic and political power. Law and legal institutions are intimately involved in this process, and not only as a means of representation and resistance. Law too stands between truth and power, and code and law together have become tools for structuring contests over the material conditions of understanding, participation and self-determination. This chapter uses the evolving landscape of law and policy in the areas of copy-right and information privacy/data protection to explore the issues of control and power in the emerging networked information society. It considers three interrelated sets of developments. The second section describes patterns of information flow in the domains of copyright and information privacy/data protection, and considers the distinctive kinds of power relations that they are producing. The third section explores the evolving conceptualization of legal rights in the two domains, and traces the ways that the ongoing production and reproduction of private economic power are reshaping shared understandings of what the law guarantees. We see there that both copyright law and information privacy/data protection law have become entry points for neoliberalization within narratives about fundamental rights of authorship, cultural participation, and privacy. In the fourth section, we see that processes of neoliberalization do not involve only concepts. Pressures to reinforce private control of information flows are catalysing farreaching changes in the structure of governance institutions, altering not only the interpretation of fundamental legal guarantees but also the mechanisms by which legal rights and obligations are defined and enforced. A more systematic integration of questions about control over information flows within traditional legal narratives about fundamental rights and human development is urgently needed, but I argue that it is also important to consider the ways that established institutional pathwaysfor defining and vindicating rights and promoting development agendas are being circumvented by emerging networked governance institutions.

The Regulatory State in the Information Age

Abstract: This Article examines the regulatory state through the lens of evolving political economy, arguing that a significant reconstruction is now underway. The ongoing shift from an industrial mode of development to an informational one has created existential challenges for regulatory models and constructs developed in the context of the industrial economy. Contemporary contests over the substance of regulatory mandates and the shape of regulatory institutions are most usefully understood as moves within a larger struggle to chart a new direction for the regulatory state in the era of informational capitalism. A regulatory state optimized for the information economy must develop rubrics for responding to three problems that have confounded existing regulatory regimes: (1) platform power — the power to link facially separate markets and/or to constrain participation in markets by using technical protocols; (2) infoglut — unmanageably voluminous, mediated information flows that create information overload; and (3) systemic threat — nascent, probabilistically-defined harm to be realized at some point in the future. Additionally, it must develop institutions capable of exercising effective oversight of information-era activities. The information-era regulatory models that have begun to emerge are procedurally informal, mediated by networks of professional and technical expertise that define relevant standards, and financialized. Such models, however, also have tended to be both opaque to external observation and highly prone to capture. New institutional forms that might ensure their legal and political accountability have been slow to develop.

Physician-Assisted Dying: A Turning Point?

Abstract: Physician Assisted Dying (PAD) has been lawful in some countries since the 1940s and in the United States since 1997. There is a body of social and scientific research that has focused on whether the practice has been misused and whether gaps exist in legislative safeguards. There are multiple concerns with physicians assisting patients to die: incompatibility with the physician’s role as a healer, devaluation of human life, coercion of vulnerable individuals (e.g., the poor and disabled), and the risk that PAD will be used beyond a narrow group of terminally ill individuals. Statutes in the United States have been drafted with these concerns in mind in an effort to mitigate the possible risks of PAD while still providing individuals with access. There seems to be a shift in attitudes towards PAD. Currently four states statutorily permit PAD and it is being discussed by multiple legislatures across the country. There also seems to be a shift in medical practice as demonstrated by a 2015 survey that showed for the first time that more than half of physicians surveyed favored medical assistance in dying. PAD is a deeply personal choice. The question is whether more states will authorize the practice and, if so, what safeguards will be put in place to ensure the practice is not misused and remains consistent with prevailing social and ethical thought.

A Yellow Fever Epidemic: A New Global Health Emergency?

Abstract: This Viewpoint discusses the yellow fever epidemic in Angola as well as in China, the Democratic Republic of Congo, and Kenya due to cases arising from infected travelers from Angola.

US smokers’ beliefs, experiences and perceptions of different cigarette variants before and after the FSPTCA ban on misleading descriptors such as ‘light’, ‘mild’, or ‘low’

Abstract: INTRODUCTION: In December 2008, the Federal Trade Commission (FTC) took action that prompted the removal of nicotine and tar listings from cigarette packs and ads. As of June 2010, the US Family Smoking Prevention and Tobacco Control Act prohibited the use of explicit or implicit descriptors on tobacco packaging or in advertising that convey messages of reduced risk or exposure, specifically including terms like "light," "mild," and "low" and similar descriptors. This study evaluates the effect of these two policy changes on smokers' beliefs, experiences and perceptions of different cigarettes. METHODS: Using generalized estimating equations models, this study analyzed survey data collected between 2002 and 2013 by the International Tobacco Control Policy Evaluation Study regarding US smokers' beliefs, experiences, and perceptions of different cigarettes. RESULTS: Between 2002 and 2013, smoker misperceptions about "light" cigarettes being less harmful did not change significantly and remained substantial, especially among those who reported using lower-strength cigarettes. After the two policy changes, reported reliance on pack colors, color terms, and other product descriptors like "smooth" to determine cigarette strength style trended upward. CONCLUSIONS: Policies implemented to reduce smoker misperceptions that some cigarettes are safer than others appear to have had little impact. Because of pack colors, color terms, descriptors such as "smooth," cigarette taste or feel, and possibly other characteristics, millions of smokers continue to believe, inaccurately, that they can reduce their harms and risks by smoking one cigarette brand or sub-brand instead of another, which may be delaying or reducing smoking cessation. IMPLICATIONS: What this study adds: This study confirms that US policies to reduce smoker misperceptions that some cigarettes are less harmful than others have not been successful. Following the removal of light/low descriptors and tar and nicotine numbers from cigarette packs and ads, pack colors, color words, other descriptors (eg, smooth), and sensory experiences of smoother or lighter taste have helped smokers to continue to identify their preferred cigarette brand styles and otherwise distinguish between which brands and styles they consider "lighter" or lower in tar and, mistakenly, less harmful than others. These findings provide additional evidence to support new enforcement or regulatory action to stop cigarettes and their packaging from misleading smokers about relative risk, which may be reducing or delaying quit attempts.

The International Right to Health: What Does It Mean in Legal Practice and How Can It Affect Priority Setting for Universal Health Coverage?

Abstract: —The international right to health is enshrined in national and international law. In a growing number of cases, individuals denied access to high-cost medicines and technologies under universal coverage systems have turned to the courts to challenge the denial of access as against their right to health. In some instances, patients seek access to medicines, services, or technologies that they would have access to under universal coverage if not for government, health system, or service delivery shortfalls. In others, patients seek access to medicines, services, or technologies that have not been included or that have been explicitly denied for coverage due to prioritization. In the former, judicialization of the right to health is critical to ensure patients access to the technologies or services to which they are entitled. In the latter, courts may grant patients access to medicines not covered as a result of explicit priority setting to allocate finite resources. By doing so, courts may ...

Sovereign Debt: Now What?

Abstract: The sovereign debt restructuring regime looks like it is coming apart. Changing patterns of capital flows, old creditors’ weakening commitment to past practices, and other stakeholders’ inability to take over, or coalesce behind a viable alternative, have challenged the regime from the moment it took shape in the mid-1990s. By 2016, its survival cannot be taken for granted. Crises in Argentina, Greece, and Ukraine since 2010 exposed the regime’s perennial failures and new shortcomings. Until an alternative emerges, there may be messier, more protracted restructurings, more demands on public resources, and more pressure on national courts to intervene in disputes that they are ill-suited to resolve. Initiatives emanating from wildly different actors — the United Nations General Assembly, the International Monetary Fund, the International Capital Market Association and the Jubilee coalition, among others — reflect broad-based demand for reform. Now is the time to reconsider the institutional architecture of sovereign debt restructuring, along with the norms and alliances that underpin it. In this symposium essay, I suggest broad criteria for evaluating a successor regime, and offer a package of incremental measures to advance sustainability, fairness, and accountability.

Lead in the Water: A Tale of Social and Environmental Injustice.

Abstract: In 1854, British physician John Snow famously wrote, “The most terrible outbreak of cholera which ever occurred in this kingdom, is probably that which took place in Broad Street, Golden Square, and the adjoining streets, a few weeks ago.” (http://bit.ly/1TUQnje). Snow linked cholera to polluted water flowing from the Broad Street pump. City officials removed the pump handle and the cholera epidemic suddenly ended. Cholera is one of many gastrointestinal illnesses caused by drinking water carrying disease-causing microbes. In 2000, for example, hundreds of Milwaukee residents became ill when they drank city water contaminated with cryptosporidium (http://bit.ly/1OPvioB).

Reporting Agency Performance: Behind the SEC's Enforcement Statistics

Abstract: Every October, after the end of its fiscal year, the Securities and Exchange Commission releases its annual enforcement report, detailing its activity for the year. The report boasts record enforcement activity, often showing significant increases over the prior fiscal year in the number of enforcement actions brought and monetary penalties ordered. The numbers suggest that the SEC is ever tougher on securities violators. The SEC includes these statistics in its budget requests; the figures are repeated in congressional testimony, scholarship, policy proposals, and the business press.Yet the SEC’s metrics are deeply flawed. The Article, a pilot study, reviews fifteen years of enforcement actions and demonstrates that the widely-circulated statistics are invalid because they do not measure what they purport to measure, and unreliable because they are inconsistent and can be manipulated all too easily. The SEC double and triple counts many of the enforcement actions it brings and overstates the fines it orders. Once these measures are adjusted, they reveal that enforcement remained steady between 2002 and 2014, and obscure a shift in enforcement towards easier-to-prosecute strict-liability violations. The SEC is not alone in using statistics that have a propensity to mislead to report its output. Multiple reporting statutes authorize Congress to cut agencies’ budgets for failing to meet performance targets. In response, agencies report flawed statistics to protect their ability to continue enforcing the law. The Article suggests that Congress should not threaten to reduce an agency’s budget because of year-to-year fluctuations in enforcement. In addition, to make reported numbers more reliable, non-financial performance measures should not be developed by the agency. Instead, the selection and development of performance indicators should be outsourced and possibly standardized across agencies, much like financial reporting has already been standardized. Doing so would depoliticize reporting, as well as facilitate comparisons among agencies, both domestically and internationally.

Filling the Gap: How Technology Enables Access to Finance for Small- and Medium-Sized Enterprises

Abstract: Traditional financial services are rapidly being reformed by technology. Small- and medium-sized enterprises (SMEs) account for more than one-half of the world’s GDP and employ two-thirds of the global workforce, however a key barrier to growth faced by SMEs around the globe is access to financing. This is not a new issue, as the onerous information, administration, and collateral requirements associated with traditional loans have inhibited SMEs from seeking or securing financing. The 2008 financial crisis only exacerbated the problem, as many local retail banks (often the primary providers of SME financing) closed their doors and the appetite for taking on high-risk SME loans was quelled. Online business lending may be stepping in to fill this gap by resolving many of the barriers associated with traditional SME financing. This paper analyzes data from PayPal Inc., a company best known for its global online payment system, and from Kiva, a crowdsourcing platform. PayPal Working Capital launched in late 2013; it is a product that enables SMEs to apply for and obtain short-term credit. Our objective is to understand how technology is impacting SMEs’ ability to access financing. Our findings suggest the following: (i) online business loans have stepped in to fill the SME funding gap left in the wake of the 2008 financial crisis; (ii) young and minority-owned businesses with low and moderate income benefit particularly from online business loans; and (iii) online business loans can boost the growth of SMEs in under-served counties. Based on increased sales of businesses that have received PPWC loans, we estimate that programs like this have the potential to boost economic activity considerably.

Scandal as a Sentinel Event--Recognizing Hidden Cost-Quality Trade-offs.

Abstract: Similar scandals at the Veterans Health Administration and the British National Health Service occurred because performance standards were incompatible with resource constraints, but the gap remained unmentionable amid pressure to make care both better and cheaper.

The President's Budget as a Source of Agency Policy Control

Abstract: A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely overlooked in this literature is how the President’s budget acts as a source of agency policy control — in particular, how the White House exercises control through OMB’s authority to prepare the budget, oversee agencies’ execution of the budget, and create and implement management initiatives through the budget process. This Article identifies seven levers associated with OMB’s work on budget preparation, budget execution, and management and shows how these levers can control agency policymaking. These levers have some salutary aspects, especially in their valuable coordination work throughout the administrative state, but they also raise a series of accountability concerns related to opacity, the extensive discretion afforded to civil servants and lower-level political appointees, and the potential for substantive policy (and political) choices to be obscured by technocratic-sounding work. The Article concludes with a reform agenda, mapping out ways that the President, OMB, Congress, and civil society should respond to these accountability problems. Future analyses of OIRA’s authority should incorporate discussion of the complementary power of OMB to use the budget as a source of agency policy control.

Damage Caps and the Labor Supply of Physicians: Evidence from the Third Reform Wave

Abstract: Nine states adopted caps on non-economic damages during the third medical malpractice reform wave from 2002-2005, joining twenty-two other states with caps on non-economic or total damages. We study the effects of these reforms on physician supply. Across a variety of difference-in-differences (DiD), triple differences, and synthetic control methods, in both state- and county-level regressions, we find, with tight confidence intervals, no evidence that cap adoption leads to an increase in total patient care physicians, increases in specialties that face high liability risk (with a possible exception for plastic surgeons), nor increases in in rural physicians.The online appendix is available from SSRN at http://ssrn.com/abstract=2761901.

Zika virus and global health security

Abstract: Americans are largely apathetic about the risks of Zika virus and Congress cannot agree on preparedness funding. Strategies to counter the spread of Zika by the World Health Organisation (WHO) grossly underestimate the disease’s impact. WHO and member countries lack sufficient resources to respond. Consequences of fiscal apathy can be measured in lives lost and long-term disabilities. Zika prevention is a matter of global health security.The epidemiologic brunt of Zika in South America falls largely on vulnerable women at heightened risk of exposure through mosquitoes and sexual transmission. Resulting transmission to fetuses and infants will have generational impacts in South American and Caribbean countries, as well as the U.S. Global costs to address Zika infections among infected infants will exceed hundreds of billions (U.S. dollars).WHO and some U.S. leaders, including President Obama, correctly assert that Zika threatens national and global security similar to humanitarian crises, climate change, and war. Words alone, however, are not enough. Global recognition of this public health crisis must stimulate greater investment in preventing negative repercussions.

Going Native: Can Consumers Recognize Native Advertising? Does it Matter?

Abstract: Native advertising, which matches the look and feel of unpaid news and editorials, has exploded online. The Federal Trade Commission has long required advertising to be clearly and conspicuously labeled, and it recently reiterated that these requirements apply to native advertising. We explore whether respondents can distinguish native advertising and “regular” ads from unpaid content, using 16 native ads, 5 “regular” ads, and 8 examples of news/editorial content, drawn from multiple sources and platforms. Overall, only 37% of respondents thought that the tested examples of native advertising were paid content, compared to 81% for “regular” advertising, with substantial variation by platform, advertiser, and labeling. Modest labeling changes materially increased the number of respondents that correctly recognized that native ads are paid content – but even these improved results fell well short of those for “regular” advertising. We also explored labeling preferences and self-reported concern about native advertising. Our findings indicate that native advertising involves a significant risk of deception which self-regulation has not addressed.

Neglected Dimensions of Global Security: The Global Health Risk Framework Commission

Abstract: The world has experienced global health crises ranging from novel influenzas (H5N1 and H1N1) and coronaviruses (SARS and MERS) to the Ebola and Zika viruses. In each case, governments and international organizations seemed unable to react quickly and decisively. Health crises have unmasked critical vulnerabilities—weak health systems, failures of leadership, and political overreaction and underreaction. The Global Health Risk Framework Commission, for which the National Academy of Medicine served as the secretariat, recently set out a comprehensive strategy to safeguard human and economic security from pandemic threats (eTable in the Supplement).

Reasonably Suspicious Algorithms: Predictive Policing at the United States Border

Abstract: As big data’s promises of increased efficiency and serendipitous insights spread across a broad range of sectors, they are accompanied by new risks, some intuitive, some unpredictable. That dichotomy is heavily accentuated in the law enforcement context, where blithe application of new technologies to analog doctrines poses a greater threat to individual rights, and the potential of data analytics to add efficiency, accuracy, and accountability to existing procedures could be all the more beneficial. Predictive policing algorithms, which approximate the probability of crimes occurring in certain areas, or being committed by certain people, epitomize this dual dynamic, as they have the potential to increase accuracy and efficiency, but also threaten to dilute the reasonable suspicion standard and increase unintentional discrimination, in a manner that existing law is ill-equipped to prevent. This is of particular concern at the United States border, where Fourth Amendment protections are weaker due to the long-recognized governmental prerogative to investigate external threats poised to infiltrate the country. This Note will argue that while the use of predictive policing algorithms at the border should not be barred outright, so as to permit potentially beneficial uses of the technology to develop, it should be carefully limited by statute to prevent the wholesale trammeling of privacy and civil liberties.

An Independent Review and Accountability Mechanism for the Sustainable Development Goals: The Possibilities of a Framework Convention on Global Health

Abstract: The Framework Convention on Global Health (FCGH), a proposed global treaty to be rooted in the right to health and aimed at health equity, could establish a nuanced, layered, and multi-faceted regime of compliance and accountability to the right to health. In so doing, it would significantly strengthen accountability for the health-related Sustainable Development Goals (SDGs), which it would encompass. Legally binding, the FCGH could facilitate accountability through the courts and catalyze comprehensive domestic accountability regimes, requiring national strategies that include transparency, community and national accountability and participatory mechanisms, and an enabling environment for social empowerment. A “Right to Health Capacity Fund” could ensure resources for these strategies. Inclusive national processes could establish targets, benchmarks, and indicators consistent with FCGH guidance, with regular reporting to a treaty body, which could also hear individual cases. State reports could be required to include plans to overcome implementation gaps, subjecting the poorest performers to penalties (e.g., restrictions on assuming global health leadership positions) and targeted capacity building measures. Regional special rapporteurs could facilitate compliance through regular country visits and respond to serious violations. And reaching beyond government compliance, from capacity building to the courts and contractual obligations, the FCGH could establish nationally enforceable right to health obligations on the private sector.

Should Corporations Have the Right to Vote?: A Paradox in the Theory of Corporate Moral Agency

Abstract: In his 2007 Ethics article, "Responsibility Incorporated," Philip Pettit argued that corporations qualify as morally responsible agents because they possess autonomy, normative judgment, and the capacity for self-control. Although there is ongoing debate over whether corporations have these capacities, both proponents and opponents of corporate moral agency appear to agree that Pettit correctly identified the requirements for moral agency. In this article, I do not take issue with either the claim that autonomy, normative judgment, and self-control are the requirements for moral agency or the claim that corporations possess them. I claim that if both of these claims are correct, then corporate moral agency entails that, in a liberal democracy, corporations should have the right to vote. I show that under the conception of democracy supported by most liberal political theorists, all parties subject to the law are entitled to the right to vote, and all parties that possess autonomy, normative judgment, and self-control are subject to the law. Therefore, if the proponents of corporate moral agency are correct, then corporations satisfy the requirements for the right to vote. I then consider potential objections to this argument. I show that the strongest objection to the corporate right to vote is undermined by Pettit's own argument for corporate autonomy. I then show that objections derived from other arguments for limiting the rights of corporations are equally unavailing. I conclude with some observations about the implications of my argument for the question of corporate speech rights.

Reconceptualising Global Finance and Its Regulation: Rethinking the Law in “Safe Assets”

Abstract: “Safe assets” describes a variety of financial claims on public or private sector entities that are used in financial markets as if they were risk-free. Government debt, central bank debt and money are publicly produced safe assets. Bank deposits, highly rated corporate debt, repos and asset-backed securities are privately produced safe assets. An influential strand of post-crisis economic thinking recasts safe assets as central to financial instability.Safe assets pose a high-stakes legal problem. Statutes, regulations, and private contracting practices allow, encourage, and constrain both the production of these financial contracts and market actors’ ability to use them as if they were safe. If safe assets are under- or overproduced, or misused, or if safety is misperceived, the law is at least partly to blame. Analysis and policy design suffer for lack of an overall legal framework for thinking about safe assets. This chapter considers the legal dimension of safe assets, and points to the policy and regulatory implications to be examined in future work. We offer a three-part framework for understanding the mechanisms by which the law fosters the production of safe assets, nurtures the development of the markets in safe assets, and promotes the continuing safety of safe assets in multiple states of the world. First, the law makes some assets less risky, for example, by mandating capital cushions for issuers of safe assets or giving investors in those assets repayment priorities. Second, the law labels some assets as safe, reducing or eliminating market participants’ incentives to discover their risk attributes. Third, the state guarantees the safety of assets when it perceives them to be important for the financial system as a whole. The law authorizes and frames the design of such guarantees.For any given asset, governments both recognize the safety attributes that arise through private ordering and enhance them with regulation, labeling, and guarantees. If all goes well, the three categories of tools feed a virtuous cycle: e.g., when low-risk assets are labeled safe, it increases demand, broadens the investor base, boosts liquidity, and reduces the cost of funding for their issuers. When the tools are misaligned, they can contribute to instability. Investors might herd into risky assets mislabeled as safe, then flee in panic when the perception of safety vanishes, with spillover effects on the broader economy. The government may have no choice but to step in with guarantees ex post, creating distortions and moral hazard.This chapter traces how the three categories of legal tools constructed four categories of safe assets – government debt, bank debt, repurchase agreements, and asset-backed securities – and how this construction unraveled in crisis. Each time, poor coordination among long-established legal and regulatory tools, rather than the tools themselves, stood out as a problem.The chapter outlines how dynamically aligning the three types of legal rules that construct safe assets might enlarge the macroprudential regulatory toolkit without creating brand new regulatory tools but would require additional research to function.

The New International Tax Diplomacy

Abstract: International tax avoidance by multinational corporations is now frontpage news. At its core, the issue is simple: the tax regimes of different countries allow multinational corporations to book much of their income in low-tax or no-tax jurisdictions, and many of their expenses in high-tax jurisdictions, thereby significantly reducing their tax liabilities. In a time of public austerity, citizens and legislators around the world have been more focused on the resulting erosion of the corporate income tax base than ever before. In response, in 2012, the G-20—the gathering of the leaders of the world’s twenty largest economies—launched the Base Erosion and Profit Shifting (BEPS) project, the most extensive attempt to change international tax norms since the 1920s. In the course of the BEPS project, the field of international tax has adopted the institutional and procedural architecture for multilateral action used in international financial law. This Article is the first to ask whether that architecture will work in the international tax context. To answer that question, this Article first applies lessons from the international financial law literature to assess international tax agreements that are now being reached through soft-law instruments and procedures comparable to those that characterize international financial law. This initial analysis, which draws from the experience in international financial law, is largely pessimistic. However, this Article then describes how model tax treaty law—although also a form of soft law—is highly effective, and differentiates the political economy of international tax law from that of international financial law. As a result, a key theoretical point emerges: bifurcating analysis of multilateral efforts to change international tax norms into their Model Treaty-based and non-Model Treaty-based components is necessary in order to understand the new regime for international tax governance. At a more practical level, bifurcating the analysis highlights that observers should expect the Model Treaty-based parts of the BEPS project to be implemented, as well as most parts of the project focused on tax transparency. By contrast, sustained international coordination in implementing other dimensions of the project is doubtful. In reaching these conclusions, the Article contributes to the broader international economic governance literature by using a high-profile example from international tax diplomacy to show how underlying legal institutions affect the prospects for implementation of international regulatory agreements. This article replaces the draft version 'Breaking BEPS: The New International Tax Diplomacy': http://ssrn.com/abstract=2652894.

Inside Safe Assets

Abstract: “Safe assets” is a catch-all term for financial contracts that market participants treat as if they were risk-free. These may include government debt, AAA corporate debt, bank debt, and asset-backed securities, among others. The International Monetary Fund estimated potential safe assets at more than $114 trillion worldwide in 2011, over seven times the U.S. economic output that year.To treat any contract as if it were risk-free seems delusional after apparently super-safe public and private debt markets collapsed overnight. Nonetheless, financial crises have only raised the policy and academic profile of safe assets, invoked to explain global imbalances, shadow banking, and prolonged economic stagnation. The economic literature speaks of safe assets in terms of poorly understood natural forces or essential particles newly discovered in a super-collider. Law is virtually absent in this account.Our Article makes four contributions. First, we describe the legal architecture of safe assets. Existing theories do not explain where safe assets get their safety. Understanding how legal and regulatory tools help make, label, and guarantee safe assets is an essential first step to managing the risks they entail. Second, we offer a unified analytical framework that links the safe asset debate with post-crisis legal critiques of money, banking, structured finance and bankruptcy. Third, we highlight sources of instability in the legal architecture, and the political commitments embedded in it. Fourth, we offer preliminary prescriptions to address some of the failings we identify.Precisely because there are no risk-free contracts, state intervention supplies the essential infrastructure to let people act as if some contracts were risk-free. The law constructs and maintains safe asset fictions, and it places them at the foundation of institutions and markets. This project is unavoidably distributive and fraught with distortions.

The United Nations Sustainable Development Goals: Achieving the Vision of Global Health with Justice

Abstract: “We are resolved to free the human race from the tyranny of poverty and want and to heal and secure our planet” (UN General Assembly, 2015, September 25, preamble). So pronounces the 2030 Agenda, the United Nations declaration on the Sustainable Development Goals (SDGs), adopted on September 25, 2015, succeeding the Millennium Development Goals (MDGs). If achieved, the SDGs will secure an improved level of health, development, and global justice. However, if the international community fails to live up to its commitments, an untold number of people will likely perish prematurely, people’s opportunities to thrive will be cut off, social dynamics will continue to leave people behind, and unsustainable environmental pathways will create risks to the health and well-being of generations to come.Here, we systematically review the MDGs — specifically, their formation, achievements, and shortcomings. Next, we review the transition to the SDGs — how they differ from the MDGs, some of the critical challenges they present, and suggestions for a response to these challenges, using a human rights-based approach. Finally, we will offer early markers to assess whether states are sincere in their commitment to longer, healthier lives for all, and offer a next step to ensure that commitment: a global health treaty based on the right to health — embodying the vision of global health with justice.