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Human Rights Risks in Clean Energy Supply Chains: Racial Capitalism, Critical Minerals, and Corporate Responsibility
No full textThis paper argues that decarbonization will fail to deliver climate justice unless the transition to clean energy confronts the racialized political economy that has historically structured extractive activity and shaped international economic law. Grounding its analysis in racial capitalism, the paper contends that the growing demand for critical minerals risks reproducing patterns of exploitation, expropriation, and expulsion. Using lithium extraction in Chile as a case study, it shows how colonial legacies, dictator-era neoliberal reforms, and present-day regulatory architectures governing foreign investment and natural resource extraction have prioritized investors over human rights and the environment. Recent decisions of the International Court of Justice and the Inter-American Court of Human Rights on climate change provide a normative counterweight to international investment law and potentially a pathway for inclusive and transformative reforms. By foregrounding racial equity, the clean energy transition can avoid replicating the distributive injustices of the fossil fuel era
In Memoriam – Professor George J. Annas
No full textGeorge J. Annas, William Fairfield Warren Professor of Boston University, Professor of and Director of the Center for Health Law, Ethics and Human Rights at BU School of Public Health, and Professor of Law at BU School of Law, died on May 30, 2025, at the age of 79. Since his death, there has been an outpouring of tributes lauding his life and work.
There was not sufficient time to include a complete appreciation of his life and work by the time this issue went to press. Fuller recognition of George’s contribution to our field will appear in a forthcoming issue
Presidents, Opinions, and Independent Officers
No full textThe Opinions in Writing Clause is a persistent textual problem for the claim that Article II implies an indefeasible removal power: If the Framers believed they had given the president an unconditional removal power, why would they also specify a lesser power merely to ask for opinions? New historical research confirms this textual problem was also contextual: early state constitutions, the Ratification debates, and the First Congress indicate that the Opinions Clause’s original public meaning signaled independence of department heads, or at least the possibility of congressional requirements like good cause.
Legal scholars have already shown that the texts of early state constitutions did not reflect an expansive meaning of “executive power” to control state administration. My research confirms this interpretation and offers two additional observations: the first about the failure of the Founding generation to address or clarify a relationship between executive power and “removal” after the “Indecisions of 1789” made this problem clear; and second, before and after 1787, there was a correlation between constitutions that had opinions clauses (or parallel “information” clauses) and structures of decisional independence, a context of an officer or a council needing a power to ask other officers for opinions or information because they did not otherwise control those officers.
The choice of the title “president,” rather than “governor” or other titles with more of a chief executive connotation, is consistent with these textual and structural inferences. Whereas governors were chief executives with singular power in a hierarchy, officers titled “president” presided over bodies as a member of those bodies, such as courts (e.g., the judicial Lord President), corporate boards, university boards, or – especially relevant for original public meaning, the Articles of Confederation Congress. Such presidents “presided” in mostly a procedural manner, similar to a Chief Justice or a Speaker of the House, while substantively, they usually shared the same powers and had a vote of equal weight among the other members of body. Of course, the Framers intended more executive power and more hierarchy than the title generally connoted, but the choice of this particular title signaled less executive authority than today we associate with the title “president” almost 250 transformational years later. It is a title that is more consistent with the structure implied by the Opinions Clause of at least a semi-independent relationship between the president and the department heads
Risk and Resistance: How Feminists Transformed the Law and Science of AIDS
No full textHow did women come to be seen as \u27at-risk\u27 for HIV? In the early years of the AIDS crisis, scientific and public health experts questioned whether women were likely to contract HIV in significant numbers and rolled out a response that effectively excluded women. Against a linear narrative of scientific discovery and progress, Risk and Resistance shows that it was the work of feminist lawyers and activists who altered the legal and public health response to the AIDS epidemic. Feminist AIDS activists and their allies took to the streets, legislatures, administrative agencies, and courts to demand the recognition of women in the HIV response. Risk and Resistance recovers a key story in feminist legal history – one of strategy, struggle, and competing feminist visions for a just and healthy society. It offers a clear and compelling vision of how social movements have the capacity to transform science in the service of legal change. Provides the story of the feminist AIDS movement, a largely untold story of HIV/AIDS history Brings together Science and Technology Studies, Feminist Theory, and Critical Legal Theory to understand social movement activism in the context of AIDS Shows how social movements use law and science to bring about legal and social changehttps://scholarship.law.bu.edu/books/1380/thumbnail.jp
Health Law as Private Law: Pathology or Pathway
No full textHealth Law as Private Law delves into the complex relationship between private law and health care. During the COVID-19 pandemic, the importance of public ordering and state-created rules was evident, yet this work reveals the equally important role of private agreements in shaping health care policy. The volume\u27s five sections – theory and structure, reproductive care, costs and financing, innovation and institutions, contracts and torts – include innovative conceptualizations and approaches to applying private law to health law. Chapters authored by leading experts explore how private law can be utilized to address significant health care and public health problems, and to achieve much-needed health care reform. Comprehensive and timely, Health Law as Private Law opens new pathways that will influence future policy, jurisprudence, and regulation. This title is also available as open access on Cambridge Core. Provides readers with a broad understanding of the private law approaches to issues in health law Supplies medical providers, policymakers, and other stakeholders with a guidance on identifying challenges and opportunities for reform Available as Open Access on Cambridge Corehttps://scholarship.law.bu.edu/books/1381/thumbnail.jp
Preventing Unjust Enrichment and Copyright Opportunism: An Equitable Interpretation of Section 103(a)
Full text linkA stealth issue in many close copyright fair use cases is the potential invalidity of second comers’ copyrights under 17 U.S.C. § 103(a) if the secondary use is ultimately held to infringe the derivative work right. Section 103(a) of the Copyright Act says, in effect, that no copyright exists in any part of a derivative work in which the first work’s expression was “used unlawfully.” Courts have largely ignored § 103(a). But recent cases, such as Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023), have raised the profile of § 103(a). This Article traces the origins, history, and case law on § 103(a), highlighting its ambiguity and significant ramifications in cases in which it was arguably relevant. By exploring the expansive range of possible interpretations and applications of § 103(a), the Article argues that a careful reading of the statutory text, in keeping with its legislative history, reveals the dual purpose of § 103: to prevent infringers from being unjustly enriched when they take protected expression from earlier works and to provide protection to the original expression contributed by derivative work authors. When courts understand this dual purpose, they can and should limit the extent to which § 103(a) should invalidate copyrights, especially in close cases of derivative work infringement and fair use rulings. When invalidations of copyrights would be inequitable as to good faith secondary uses of source works, would result in windfalls to source work authors, or would otherwise be contrary to fundamental principles of copyright law, this Article argues that the best reading of § 103 would apply it narrowly to achieve copyright’s goal of promoting the “progress of science.
Automatic Reaction - What Happens to Workers at Firms that Automate?
Full text linkWe provide the first estimate of the impacts of automation on individual workers by combining Dutch micro-data with a direct measure of automation expenditures covering firms in all private non-financial industries over 2000-2016. Using an event study differences-indifferences design, we find that automation at the firm increases the probability of workers separating from their employers and decreases days worked, leading to a 5-year cumulative wage income loss of about 8% of one year’s earnings for incumbent workers. We find little change in wage rates. Further, lost wage earnings are only partially offset by various benefits systems and are disproportionately borne by older workers and workers with longer firm tenure. Compared to findings from a literature on mass layoffs, the effects of automation are more gradual and automation displaces far fewer workers, both at the individual firms and in the workforce overall
Whose burden, whose benefit? Revisiting ethical trade-offs in the WHO guidelines on scaling up mass azithromycin administration
No full textAuthor summary New evidence suggests that mass drug administration of azithromycin (MDAA) can significantly reduce childhood mortality in high-burden, low-resource settings, yet the World Health Organization’s (WHO) 2020 guidelines take a cautious approach due to concerns about antimicrobial resistance (AMR). While the WHO guidelines cite ethical principles, they insufficiently address key considerations, such as intergenerational justice, equitable burden sharing, and the structural determinants of health that shape infectious disease vulnerability. Global AMR policy often prioritizes conservation over access in ways that disproportionately burden low-income countries, despite high-income countries also bearing significant responsibility for the emergence and spread of AMR. A balanced ethical framework is needed: one that explicitly integrates contextual values, including justice across generations, historical inequities, and community input under uncertainty. Revised WHO guidelines that expand eligibility for MDAA based on context-specific criteria, establish thresholds for mortality and resistance monitoring, and encourage global investment in sustainable health systems and antibiotic access, may better align with the WHO’s own principles on equity, human rights, and social determinants of health in the development of guidelines
What Shall Be Orthodox in Polarized Times: Overview and Response to Commentators
No full text“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Robert Jackson wrote this celebrated passage in his majority opinion in West Virginia State Board of Education v. Barnette (1943), which protected the First Amendment right of Jehovah’s Witness children not to participate in a compulsory flag salute in public schools. In recent years, protests against imposed orthodoxy—usually invoking Barnette—have occurred in a growing number of contexts, often when conservatives resist governmental promotion of public values concerned with equality. Many controversies, like Barnette, concern schools: conflicts over how best to teach U.S. history, civics, and patriotism, and whether state restrictions and mandates on teaching about race, gender, or sexual orientation are unconstitutional. Barnette also features in conservative challenges to state antidiscrimination laws. The children in Barnette, members of a persecuted religious minority, have become the symbol of today’s religious and social conservatives, who contend their “unpopular” dissenting beliefs are threatened by the compelled orthodoxy of hostile majorities.
Our book analyzes battles over “what shall be orthodox” in contemporary legal and political controversies in the United States. We plan to give Barnette’s principles their proper role in protecting our basic liberties, but to temper overextending them to eviscerate civic education programs and antidiscrimination laws—programs and laws crucial to the health and maintenance of our constitutional democracy. We propose to secure the status of equal citizenship for all while protecting the central range of application for the basic liberties conservatives fear are being trammeled. What conservatives have portrayed as their championing of freedom over and against liberal, feminist, or progressive compulsion of orthodoxies, we demonstrate to be clashes between conservative orthodoxies seeking to maintain or restore a traditional status quo and liberal, feminist, or progressive measures aiming to secure the status of equal citizenship for all.
In our book, we defend such measures aiming to secure the status of equal citizenship for all against conservative resistance on four fronts: (1) resistance to moral pluralism itself; (2) resistance to civic education seeking to cultivate civic virtues and to foster mutual respect and equality for all; (3) resistance to antidiscrimination laws in the name of protecting freedom of speech, association, and religious liberty; and (4) resistance to gender equality, including reproductive freedom and gender-affirming care, in defending traditional gender norms. We conclude with strategies for building and maintaining a liberal, feminist, or progressive “Constitution in exile” over the next generation or longer, while conservatives are likely to dominate the Supreme Court.
In this article, we give an overview of the book, followed by some remarks in response to the published essays by commentators
Amicus in Trump v. Cook: The Fed, Offices as Property, and the Meaning of “Cause”
No full textThe Federal Reserve Act states that “each member shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President.” 12 U.S.C. § 242. Based on the historical record, when Congress creates an office with a fixed term of years and protects against removal without “cause,” Congress has both granted “a constitutionally protected property interest” under the Fifth Amendment (that cannot be taken away without “due process”) and extended a statutory entitlement to receive fair notice and a meaningful opportunity to respond before any removal may take effect.
Constitutional Protection: Under English law through the eighteenth century, termed executive offices – even cabinet-level offices – were considered “freehold” property, subject to protections from removal akin to those applicable to real property. This conception – of termed offices as “property” – would have been well known to the Founders and was reflected in Founding-era documents and commentary. The Constitution was drafted with this understanding.
Statutory Protection: Independent of the Fifth Amendment, the “cause” requirement has a long-established common law meaning of requiring notice and an opportunity to be heard before removal. This understanding hails from pre-Founding English common law, and it is likewise reflected in American precedents soon before Congress drafted the Federal Reserve Act of 1913. See Shurtleff v. United States, 189 U.S. 311, 314 (1903); Reagan v. United States, 182 U.S. 419, 425 (1901). The Act’s text of “cause” should be read in this context.
“Faithful Execution.” Article II of the Constitution requires the President to undertake a “faithful execution” of the laws. From a historical perspective, there is nothing inconsistent with that obligation and recognizing procedural protections for employees who can be terminated only for cause