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Affirmatively Furthering Health Equity
Full text linkPervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the healthcare sector, government action, standing alone, is limited in its power to remedy health disparities. This article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the healthcare sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal healthcare funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that recipients of federal housing funds take steps to affirmatively further fair housing, an obligation justified by the history of government support for racial residential segregation, inspires this proposal. Perhaps less well known is the government’s role in producing and tolerating de facto segregated healthcare facilities and racial health disparities. Antidiscrimination laws, including Title VI of the Civil Rights Act, Section 1557 of the Affordable Care Act, and Section 504 of the Rehabilitation Act, provide statutory underpinnings for an affirmatively furthering health equity (AFHE) obligation. Moreover, existing legal and regulatory frameworks relating to hospital tax exemption, community-based supports for disabled people, and administration of Medicare and Medicaid suggest models for implementing an AFHE obligation. Receipt of federal funding by hundreds of thousands of health sector actors should come with some responsibility for working toward ameliorating health inequities
Beyond “Hard” Skills: Teaching Outward- and Inward-Facing Character-Based Skills to 1Ls in Light of ABA Standard 303(B)(3)’s Professional Identity Requirement
Full text linkNewly adopted American Bar Association Standard 303(b)(3) requires law schools to provide “substantial opportunities to students for . . . the development of professional identity” throughout their three-year legal education. For 1Ls, the ideal place to start this process is in their lawyering skills classrooms, which is our domain at Boston University School of Law. Professional identity exploration necessarily requires students to look inward and outward to reflect upon their own role in the legal system and how they interact with others. In our classrooms, we divide what have been referred to as “soft” skills into two distinct categories—outward-facing and inward-facing character-based skills. Outward-facing character-based skills include empathy, emotional intelligence, and other interpersonal skills like active listening and teamwork. Developing these skills helps students and lawyers more deeply and effectively relate to clients, colleagues, and other stakeholders. Inward-facing character-based skills include developing personal values for practice, engaging in reflection, setting boundaries in line with the purpose and morality of the law, and engaging in wellbeing practices. Through specific exercises, assignments, and discussion prompts aimed at developing these skills, which give students the chance to ponder their own professional identities, students practice looking inward and outward during their 1L year, hopefully in satisfaction of ABA Standard 303(b)(3). In this article, we share some ways in which we have adjusted our teaching to comply with Standard 303(b)(3) by addressing professional identity formation through the vehicles of outward-facing and inward-facing character-based skills. Part I of this article generally defines professional identity and introduces ABA Standard 303(b)(3)’s new professional identity formation requirement. Parts II and III further explain what we mean when we refer to outward-facing and inward-facing character-based skills, respectively, and will explore why they are critical for future lawyers. Part IV discusses how the lawyering skills classroom is the ideal place to teach these skills to 1Ls, thus beginning an education around professional identity that will span all three years of law school. Finally, Part V shares some of our strategies for incorporating these skills into our 1L curriculum
Nonparty Litigation Holds: Clear to Implement. Complex to Lift.
Full text linkLegal holds have long been used by parties, and nonparties alike, as a fundamental tool to preserve information that could be needed in litigation. There are a breadth of statutes, case law, and scholarly work clarifying when a party has the duty to preserve documents and therefore issues legal holds under federal law, as well as when nonparties share this same duty. Although the question of when to issue a legal hold has a clear answer, the problem of when a nonparty can lift a litigation hold is much more complex. Often, nonparties who have been requested to preserve documents beyond their automatic retention policy will keep a legal hold in place for a prolonged period of time. Consequently, the nonparty has no choice but to manage increased expenses, wasted time, and prolonged security risks. Therefore, nonparties subject to this requirement are forced to withstand an unnecessary burden, despite not being a party to the case in question. While the Sedona Conference has attempted to mitigate this burden, this note advocates for the Judicial Conference, which advocates for amendments to the Federal Rules of Procedure, to address this problem directly. More specifically, this note proposes the burden be entirely shifted to the requesting party to outline an explicit period of time for which a nonparty is required to preserve its documents
Electric Vehicles at the Expense of Communities: Lithium Mining and the Deprivation of Argentinian Indigenous Peoples’ Rights
Full text linkLithium has become a valuable commodity and resource globally. The metal’s power generating and storing qualities have directly contributed to the development of the lithium-ion battery, which is primarily used in electric vehicles. As the demand for electric vehicles continuously grows, electric vehicle manufacturers require substantially larger quantities of lithium to ensure their supply meets demand. Thus, manufacturers rely on lithium mining companies to establish mining operations in lithium dense areas and extract tremendous amounts of the element. One country where an abundance of lithium can be found is Argentina. Known as one of the countries comprising the “lithium triangle,” Argentina’s salt flats are rich in lithium, making it a highly desirable location for lithium mining companies to commence operations. Jujuy, Argentina, is specifically known for its lithium supply, as the Salinas Grandes region in Jujuy composes greater than one-third of the country’s total lithium reserves. With mining companies initiating or planning lithium mining operations in Jujuy, there is great concern for the Indigenous communities living in the region. The Salinas Grandes is home to thousands of Indigenous peoples who depend on the region’s lands and resources to support their habitability and livelihoods. Lithium mining threatens these lands and resources, however, due to the resource scarcity, and water and soil contamination associated with lithium mining. The Jujuy Indigenous communities have attempted to alleviate the damage of lithium mining through soliciting aid from the Argentinian Government, but the Government has wholly failed to acknowledge the harm imposed upon these communities. Instead, the Government has silenced, undermined, and disregarded the Jujuy Indigenous communities, demonstrating that the Government is only interested in benefiting and profiting from the emergence of lithium mining. The Government has significant obligations, pursuant to the Indigenous and Tribal Peoples Convention and United Nations Declaration on the Rights of Indigenous Peoples, to respect and uphold the land and resource rights of the Jujuy Indigenous communities. These rights require the Government to afford the Jujuy Indigenous peoples consultation and participation rights with regards to lithium mining reforms, contracts, and regulations. The Government, nevertheless, has not implemented adequate procedures to preserve these rights, demonstrating that the Government is infringing upon the Jujuy Indigenous communities’ internationally recognized rights. This Note argues that the Argentinian Government has substantially breached its obligations under international law, mandating the Government to amend its lithium mining reforms to mitigate any further violation of the Jujuy Indigenous communities’ rights
Closing Down Access to Asylum: The Illegal Migration Act’s Incompatibility with International Refugee Law
Full text linkIn 2023, the United Kingdom enacted the Illegal Migration Act, implemented to deter individuals from seeking asylum in the United Kingdom. The Illegal Migration Act places a duty on the Secretary of State is to remove all persons who meet certain criteria regardless of whether they make a protection, human rights, slavery, or human trafficking claims. The Act provides a list of countries — Schedule 1 — which it declares to be safe and thus, obliges the Secretary to remove such nationals to their country of origin without consideration of their claim on the merits. This procedural mechanism increases the likelihood of individuals being subjected to refoulement in violation the 1951 Refugee Convention, which places a duty on the United Kingdom not to forcibly return individuals to a place where they fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Furthermore, differential treatment among refugees based on their country of origin is an infringement of the duty of non-discrimination because it ignores the fact that fear of persecution is based on the individual and not on a group stereotype. The Illegal Migration Act is a direct response to the increasing number of small boat arrivals, which predominantly encompass nationals from Albania, Afghanistan, and Iran. Of these three nations, Albania is the only country listed in Schedule 1. The United Kingdom’s presumption of safety in Albania is particularly shocking because prior to 2023, over one-half of Albanians’ asylum claims for refugee and human rights protection were granted in the United Kingdom. Notwithstanding the fact that Albania had one of the highest asylum grant rates, the Home Affairs Committee published a report in June 2023 announcing that it had found little evidence to indicate Albanians should require asylum. Unfortunately, Albanians have very legitimate fears of persecution as political corruption, criminal organizations and human trafficking are widespread. Individuals who do not fall under Schedule 1 will be removed to a safe third country, but the only such bilateral agreement was with Rwanda, which was officially declared unlawful by the United Kingdom’s highest court in November 2023. The Court found there were substantial grounds for believing that the removal of asylum claimants tot Rwanda would put them at great risk for being subjected to refoulement, citing Rwanda’s troubling human rights record in which the Rwandan government is primarily responsible for the majority of human rights violations. Only weeks later, the United Kingdom entered into a new treaty with Rwandan Prime Minister and proposed the Safety of Rwanda Bill, which if successful, will substantially limit an individual’s ability to challenge their relocation to Rwanda in the United Kingdom’s judicial system. The United Kingdom has managed to evade accountability for its breaches under the 1951 Refugee Convention thus far, but it is imperative that they expeditiously address these concerns to avoid deporting claimants too countries where they may fear persecution, or otherwise be in grave danger
Murder and a Mother’s Love: Understanding Maternal Altruistic Filicide and Reshaping the Legal System’s Approach to Mentally Ill Mothers Who Kill Their Children
Full text linkEvery year, thousands of children are killed by their parents. Some of these killings are committed by mentally ill mothers who believe that death is in their children\u27s best interest. This category of killings is called maternal altruistic filicide. Numerous studies have found that mothers who commit altruistic filicide are severely mentally ill and have histories of psychiatric illness, trauma, and suicidality. Despite this, mothers who commit altruistic filicide are often railroaded through the criminal legal system without access to adequate mental health care. Traditional legal procedures designed to assist the mentally ill, such as the insanity defense or the “guilty but mentally ill” verdict, are unworkable and insufficient remedies for these mothers. As a result, most mothers who commit altruistic filicide are incarcerated with very long sentences. This has created a system of injustice whereby mothers who commit altruistic filicide are forced to live in prison environments without access to adequate psychiatric care. This typically results in an exacerbation of preexisting mental health problems, and it prevents the mothers from attaining a meaningful recovery. This Note examines the current criminal legal approach to mothers who commit altruistic filicide and discusses its inadequacies. After outlining the problematic nature of the current legal approach towards mothers who commit altruistic filicide, this Note argues for the implementation of a system where, instead of incarceration, these mothers are automatically transferred to mental health courts to undergo mental health treatment and receive community-based support. This approach will allow mothers who commit altruistic filicide to receive quality treatment for their mental illness while also getting the opportunity to transition back into the community
The Section 1031 Qualified-Use Requirement
Full text linkSection 1031 allows owners of real property to dispose of their property and acquire replacement real property tax-free, and it is one of the most widely used transactional-planning provisions in federal tax law. With the variation in size of the transaction to which section 1031 applies comes varying levels of advice available to property owners. The significant variation in advice that property owners receive affects the actions that they take with respect to their property. Such variation appears to be most pronounced with respect to section 1031 exchanges that occur in proximity to business transactions (i.e., contributions to and distributions from business entities). Some advisors claim that the exchange and proximate business transactions must be separated by some period or separated by a change in tax years. This Article shows that such advice has no support in the law. Despite the lack of support for such advice, the advice persists to the detriment of property owners, especially those who are under-represented. The problem is exacerbated by infrastructure that exists in the section 1031 space to facilitate section 1031 exchanges. Almost every exchange is facilitated by a section 1031 qualified intermediary. The largest section 1031 qualified intermediaries facilitate tens of thousands of exchanges each year. The exchange agents and others working within qualified intermediaries are in contact with tens of thousands of property owners each year. To economize transaction costs, property owners will often look to qualified intermediaries for advice regarding section 1031 exchanges. Because of the wide variation in property owners that engage in section 1031 exchanges and the pressure to keep costs manageable, advisors may attempt to provide general, simplified descriptions of the cases and IRS rulings that consider the qualified-use requirement. The advice may also be designed to minimize property owners’ tax risk. That approach is undermined by the significant variety of transactions that raise the qualified-use requirement. Case law and IRS rulings span various types of qualified-used transactions, each fitting into a category that is governed by its own set of rules. The relevance of qualified-use authority to any given situation depends upon the facts of the authority and the facts of the given situation.Thus, not all qualified-use authority is created equal or treated equally with respect to the various situations that raise the qualified-use requirement.This Article brings order to the qualified-use issue by describing the legally prescribed analysis that applies to tax-law questions such as the section 1031 qualified-use requirement. By categorizing the qualified-use cases and rulings according to transaction type, the Article shows that the law governing the qualified-use requirement is rational and certain with respect to several types of qualified-use exchanges. The failure of property owners and their advisors to accurately understand the law governing the qualified-use requirement could result in multiple types of risk that extend beyond tax risks. First, advice to hold property for a period under the mistaken belief that holding property longer increases the likelihood of satisfying the qualified-use requirement can create transaction risks. For instance, property could lose value, or disagreements among co-owners could arise while property is held longer under the misperception that doing so reduces tax risk. Second, advising clients to hold property longer than is needed with no authority to support such advice exposes advisors to advisory risk. Such risks are reduced when advice is based upon relevant authorities
Data Scraping for Generative AI—To What Extent?
Full text linkGenerative AI platforms are developed by scraping data from other platforms. This raises complex copyright infringement issues that are yet to be resolved. Courts have attempted to address these problems using the fair use doctrine, which evaluates four factors to determine whether a use infringes on copyright: (1) the purpose and character of the use, (2) the nature of the use, (3) the amount and substantiality of the copyrighted work’s use, and (4) the impact of the use on the market for the original work. Despite efforts to apply this long-established doctrine, challenges persist, including difficulties in identifying the copyright owner, distinguishing between inputs and outputs, and assessing transformativeness. As a result, courts have suggested handling these cases on an ad-hoc basis and through jury trials, leaving many questions unresolved. This Note examines the limitations of the fair use doctrine in relation to generative AI and proposes additional factors for consideration in resolving these issues
Artful Imbalance: How the US Tax Code and State Trust Laws Enable the Growth of Inequality Through High-Value Art Collections
Full text linkThe United States has become the leading jurisdiction for those who wish to buy and store high-value art and NFTs, pay as few taxes as possible, and ultimately secure their wealth for generations. This “onshore” tax crisis is the result of tax loopholes, money laundering, the securitization of art and NFTs, and the state-by-state trust system. These forms of tax dodging—both legal and illegal—contribute to wealth inequality and deplete the welfare state. As natural disasters and pandemics become ever more present, the United States will rely more heavily on taxes, and that burden should be carried by everyone, not just the middle class. This note suggests a multipronged solution to address the tax crisis through a national trust registration and tax, an elimination of DAPTs, increased regulation of freeports, and a return to UNESCO