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Tax as Hybrid Law: Borrowing and Convergences
Full text link[This article argues that tax is a hybrid of civil and common law, public and private law, and is cross-disciplinary. It observes that tax law has become an all-purpose tool for legislators. It seeks to demonstrate how the U.S., a common law jurisdiction, has turned to civil law models for taxation while civil law jurisdictions and the European Union have sought common law models to combat tax avoidance. The ubiquity of tax and its public law influence on private law transactions, its cross disciplinary nature, and its deployment as a legislative tool to manage the economy make it a candidate for reform targeting cross-border uniformity and systemic convergence – a motion that has begun and should continue to reach full uniformity
From Crisis to Controversy: Examining the Legality of Overdose Prevention Centers in New York and Beyond
Full text linkThe opioid overdose epidemic in the United States has prompted the implementation of Overdose Prevention Centers [OPCs] as a harm reduction strategy, despite uncertain legality under federal law and conflicting statutory interpretations. These OPCs face imminent legal challenges, primarily due to the application of the federal “Crack House Statute,” which criminalizes maintaining a drug-involved premises. If unresolved, these legal uncertainties could lead to the prosecution and closure of OPCs, exacerbating the epidemic. To secure the future of OPCs, independent judicial interpretation of the Crack House Statue by certain circuits or legislative action amending the Crack House Statute to authorize OPCs is urgently needed. Recent legal analyses, including those in the aftermath of the Third Circuit’s decision in Safehouse II, have extensively reviewed the statutory interpretations impacting OPCs. However, existing literature lacks a comprehensive analysis of how different judicial circuits might interpret the Crack House Statute. This Note proposes a comprehensive analysis of judicial interpretations across various circuits to assess the potential for legal protection of OPCs. By examining the legal landscape surrounding OPCs and proposing a comparative circuit analysis, this Notes contributes to the discourse on the legality of certain harm reduction strategies amidst the opioid overdose epidemic
Reproductive Rights and Medico-Legal Education Post-Dobbs: A Fireside Chat
Full text linkThe Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization was a pivotal moment that reshaped the landscape of abortion policy and delivery of abortion care in the United States. To create a space for critical reflection on the implications of Dobbs for the teaching and learning of abortion care in both medical and legal education, the authors engage in a dialogue highlighting the varied perspectives of professionals and professionals-in-training in both the medical and legal professions. As new attacks on reproductive autonomy continue at both state and federal levels, we foreshadow a tumultuous landscape for abortion policy in the next several decades and describe the impact and ramifications of widespread restrictions on abortion care at all levels of medical training and practice; collaboration between physicians and attorneys will be essential to forge a path ahead
Foreword
Full text linkOn February 24, 2022, the Russian Federation invaded Ukraine. After more than two years, this conflict has caused an uncountable number of victims and more than six million Ukrainian refugees are spread around the world begging for protection and safe harbour. This ongoing conflict and the increasing level of force, the questionable nature of means and methods of warfare used begs the question whether international institutions in general, and International Law in particular, are still effective means “to maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead.” (Article 1 UNC)
Adapting a Human Rights-Based Framework to Inform Militaries’ Artificial Intelligence Decision-Making Processes
Full text linkKey global powers are engaged in the development of artificial intelligence (“AI”) for military purposes, and it is widely accepted that the development and deployment of AI tools will lead to a revolution in military strategy and the practice of warfighting. The question is whether these tools can be designed, developed, and deployed in a manner that facilitates compliance with international legal obligations—in particular the law of armed conflict and international human rights law—and if so, how. To date, this question has not been answered satisfactorily. This article examines how concepts and procedures derived from international human rights law can combine with the law of armed conflict to inform militaries’ AI-related decision-making processes. A human rights-based approach to the decision-making process centres around the identification of the intended benefits of an AI tool—including an elaboration of the intended circumstances of use—and an identification of the potential harms, so that these “competing interests” can be assessed. Reference to either an appropriate evidence base, or reasoned justification, is essential. This should be capable of “convincingly establishing” the claimed benefit of a measure, and of providing a full evaluation of the potential harm. This article begins by providing some examples of how AI is, or is likely to be, used by the military. It then discusses the current approach to the military use of AI, highlighting the need to develop appropriate guidance capable of influencing militaries’ decision-making processes. It then sets out, in broad terms, a human rights-based approach to AI, before turning to a more in-depth examination of how a human rights-based approach can help inform the decision to deploy an AI tool. The final sections of this article then discuss how the intended benefit, and the potential harm, of an AI deployment can be evaluated
Flattening the Learning Curve for International J.D. Students
Full text linkNon-U.S. lawyers entering U.S. law schools in accelerated J.D. degree programs (known as the “AJD” – Advanced Juris Doctor Program at Arizona Law) face particular challenges adapting to 1L legal research, analysis, and communication classes. First, English is not the typical lingua franca for AJD students, many of whom come from civil law countries and are faced with the challenge of learning legal writing methods for an American common-law legal system. Second, AJD students earn a U.S. J.D. degree in only two years because these accelerated programs give one year of “credit” for their non-U.S. law degrees. As a consequence, many of these students do not have enough time to master the strong legal research and writing skills that are foundational to academic and bar success. Some of the AJDs floundered in Arizona Law’s fast-paced, mandatory year-long writing course.
To respond to this problem, Arizona Law created the Introduction to Lawyering Skills (“ILS”) course. ILS was designed to provide a successful, scaffolded “on-ramp” to ensure greater academic success for the AJDs who most need an additional year of legal writing, analysis, and communication course work.
This article recounts why we saw the need for ILS, how we created the learning objectives and curriculum, how students were selected for enrollment, and how we addressed expected (and unexpected) challenges along the way. Finally, it argues that a specialized course for certain AJD students not only helps better prepare them to meet the academic rigors of their other law classes and the bar exam, but it also has the side benefit of better connecting the students to a law school’s community and culture
Authority to Improve or Harm Health: The Public Health Front in a Decades-Long Battle Over Governmental Powers
Full text linkBacklash to local, state, and federal responses to combat COVID-19 has resulted in a small but vocal cohort of legislatures and courts trying to change long-settled and foundational principles of public health decision-making. They have shifted authority away from experts and local decision-makers, limiting emergency response in ways that also impact day-to-day public health efforts. Considering some examples of other recent preemption efforts, it is clear that COVID-era backlash is part of a longer-term deregulatory agenda, often framed as an effort to keep “big government” out of people’s lives and to preserve individual freedoms. However, the impact of such deregulation is clear: in the public health sphere, it harms those it purports to protect by limiting access to rights, services, and information that can improve people’s opportunities to live healthy lives. Nonetheless, we now have an opportunity to reinvigorate the public health system such that it better centers the needs of the entire population and serves all it intends to protect
The Model Public-Health Emergency Authority Act
Full text linkThe Uniform Law Commission recently approved the Model Public-Health Emergency Authority Act (MPHEAA or the Act or the Model Act). The MPHEAA grants governors specific and plenary powers to issue public health emergency orders while also ensuring executive branch transparency and accountability. The Act improves public health emergency preparedness by resecuring the legal foundation for states to respond effectively to future emergencies. However, more work is needed to enhance data collection and support vulnerable populations in emergencies.
This Article discusses the origins of the MPHEAA, key policy and drafting choices the Drafting Committee made in creating the MPHEAA, and the impact of the MPHEAA on public health preparedness. It begins with a history and overview of the MPHEAA and then dives deeply into two challenging choices the Drafting Committee made: (1) granting both specific and plenary powers to a governor to issue public health emergency orders; and (2) authorizing a governor to renew a declaration of public health emergency for as long as the emergency might last without requiring legislative approval. It concludes that the MPHEAA adds to the nation’s public health emergency preparedness by securing the powers governors and public health officials may need to respond to a variety of public health emergencies in the future and does so in ways that can withstand various forms of judicial scrutiny
Progressive Constitutionalism and Its Libertarian Discontents: The Case of LGBTQ Rights
Full text linkThis Article, based on the 2023 Childress Memorial Lecture given at the Saint Louis University School of Law, argues that libertarian political morality and constitutionalism constitute double-edged swords for progressives. On the one hand, libertarian principles have helped advance some progressive objectives inside and outside of the courts, including several related to LGBTQ rights. On the other hand, libertarian understandings of the Constitution have undermined a wide array of other progressive distributive and egalitarian objectives. In promoting a generalized skepticism of state action, a progressive constitutionalism that embraces (or fails to question) the libertarian ethos of limited government and exclusively negative rights to liberty might help protect against some of the worst forms of state coercion, but does little to help build a progressive society constructed around distributive justice and the attainment of egalitarian objectives.
This Article argues that if progressives want to successfully harness the power of the state to redistribute resources in ways that make our society more fair and egalitarian as a means of permitting everyone—regardless of class, race, ethnicity, gender, sexual orientation, or disability—to flourish, then we need to purposefully and systematically explore how to make sure that, in pursuing particular political or legal objectives, including those related to LGBTQ rights, we do not unintentionally strengthen the libertarian ethos that so powerfully stands in the way of the attainment of distributive and egalitarian objectives in the U.S. This Article urges LGBTQ rights proponents to articulate and defend moral and constitutional frameworks that are not grounded in a libertarian ethos characterized by atomistic understandings of the self and exclusively negative conceptions of liberty that fail to impose affirmative obligations on the government to create the necessary social and economic conditions that are essential for everyone, and not just the wealthy and powerful, to exercise meaningful liberty and attain meaningful equality