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Response to Commentaries on Who’s the Bigot?
Get PDFOne of the joys of writing a book is the chance to have its arguments and observations evaluated by creative and engaged readers. I am very grateful that the scholars included in this book symposium provided such constructive commentary on the manuscript of my book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. One of those commentators, Professor Imer Flores, also generously hosted a wonderful live conference at which I had the chance to hear and engage with early versions of several of these commentaries. The final book, I hope, reflects improvements that grew out of those exchanges. For that reason, one simple format for this response would be a series of statements saying “I agree!” or, to paraphrase the old Prego spaghetti sauce advertisement, “It’s in there!” The commentaries, however, also offer some valuable normative prescriptions and spark useful questions about important future investigations, such as the contested boundaries of public and private space (and morality) in controversies over civil rights laws and religious liberty, the application of the rhetoric of bigotry to past and present gender discrimination, and the ways a law-and-literature lens might inform and complement my study of bigotry. This response acknowledges (briefly) my basic agreement with these commentaries and then offers preliminary thoughts about some areas of future investigation
Justifying Copyright in the Age of Digital Reproduction: The Case of Photographers
Get PDFThis Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each other; other times, their differences challenge the other’s coherence. Reading the accounts side-by-side further identifies synergies that may serve as moral confirmation for winners in the copyright system. At the same time, comparisons reveal opportunities for resistance by those who contest copyright law’s explanation of how it promotes creativity as a function of “progress.” The social structures made legible through the overlapping stories of creativity, copying, and copyright delineate in diverse ways the object of value (“copyright” and “original works of authorship”) as well as the anxieties regarding digital age trends of widespread dissemination and verbatim copying. Simultaneously, these same stories signal an expectation of access to the tools of distribution and of opportunity to practice one’s own art, undermining copyright’s exclusivity and value associated with it. Understanding this complex position regarding digital reproduction, creative practices, industry changes, and professional opportunity may be useful for reforming copyright in a manner that includes rapidly evolving aesthetic practices and diverse creators of the future
Data First – Tax Next: How Fiji’s Technology Can Improve New Zealand’s \u27Netflix Tax\u27 (Electronic Marketplaces) Part 3
Get PDFThis is the third paper examining the recent amendments to the New Zealand Goods and Services Tax (GST) that are commonly known as the Netflix Tax. A fourth paper will follow.The importance and complexity of dealing with electronic marketplaces has made an independent paper on electronic marketplaces necessary. Taken together this set of four papers assess the effectiveness of the Netflix provisions, and how they can be enhanced by adopting the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.This paper considers rules that allocate the responsibility for collecting, reporting and remitting GST between:(a) the digital platforms in one instance, and(b) the remote (third-party) service providers that use digital intermediaries to sell into New Zealand in the other instance.The fourth paper will consider the three remaining issues:(a) the treatment of domestic agents when they are used by remote service providers to facilitate sales to New Zealand customers;(b) how New Zealand responds to resident consumers who supply false information to remote service providers so that the service provider will zero-rate a transaction, thereby defeating the GST; and(c) the treatment of dual status taxpayers, New Zealand residents whose status allows them to enter into contracts with remote service providers either as individual consumers or as business taxpayers.As before, the primary contrast is the difference between New Zealand’s traditional (statute and regulation) approach to VAT reform, and the technology-intensive approach of Fiji. Both jurisdictions are struggling to deal with the modern economy, but they approach this challenge very differently. These papers come down on the side of Fiji and technology. In the end it observes that what Fiji understands is that code, computer code, is very effective and cost-efficient regulation. There is something important to learn about the way that Fiji utilizes “code” (computer code) in its tax reform
Exposed: Why Our Health Insurance is Incomplete and What Can Be Done About it
No full textA sharp exposé of the roots of the cost-exposure consensus in American health care that shows how the next wave of reform can secure real access and efficiency.
The toxic battle over how to reshape American health care has overshadowed the underlying bipartisan agreement that health insurance coverage should be incomplete. Both Democrats and Republicans expect patients to bear a substantial portion of health care costs through deductibles, copayments, and coinsurance. In theory this strategy empowers patients to make cost–benefit tradeoffs, encourages thrift and efficiency in a system rife with waste, and defends against the moral hazard that can arise from insurance. But in fact, as Christopher T. Robertson reveals, this cost-exposure consensus keeps people from valuable care, causes widespread anxiety, and drives many patients and their families into bankruptcy and foreclosure.
Marshalling a decade of research, Exposed offers an alternative framework that takes us back to the core purpose of insurance: pooling resources to provide individuals access to care that would otherwise be unaffordable. Robertson shows how the cost-exposure consensus has changed the meaning and experience of health care and exchanged one form of moral hazard for another. He also provides avenues of reform. If cost exposure remains a primary strategy, physicians, hospitals, and other providers must be held legally responsible for communicating those costs to patients, and insurance companies should scale cost exposure to individuals’ ability to pay.
New and more promising models are on the horizon, if only we would let go our misguided embrace of incomplete insurance.https://scholarship.law.bu.edu/books/1250/thumbnail.jp
A Common-Sense Defense of Janus: Forthcoming Changes in the Public Sector
Get PDFMany scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. 17 A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As 18 Is and others 19 have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also been well documented. 20
This paper seeks to turn the focus from a now well-recognized problem toward the Supreme Court\u27s recent decision in Janus v. American Federation of State, County, and Municipal Employees21 and to consider changes we might expect to see in the short and medium term. The Court\u27s conclusion-that its forty-year-old decision in Abood v. Detriot Board of Education22 should be overturned on First Amendment grounds-did not come as much of a surprise. 23 Agency fees, the Court held, are inconsistent with the First Amendment in so far as they compel speech in a manner that cannot survive exacting scrutiny. 24 Whether or not Janus and its view of agency fees is compatible with the Court\u27s own constitutional jurisprudence is not a subject about which an employee-benefits lawyer is qualified or eager to offer comment. The benefits perspective may be useful, though, in evaluating the likelihood of reforming some of the worst salary and postemployment excesses now common in parts of the public sector
Digital Health Privacy in Active-Aging Settings: Will the Law Let You Age Well?
Get PDFWhat is privacy and how are our interpretations of it changing with advances in technology? This question, and concerns around potentially violating a person’s right to privacy, have been emerging across industries around the world. Senior living providers have increased their exposure to privacy risks with the shift to implementing sensors throughout their communities. Typically located in digital health devices that can be worn on the body or placed in the environment, these sensors are capable of collecting and tracking data relevant to a person’s health and well-being on a continuous monitoring basis./= / \u3e/= / \u3eThere are privacy laws and a growing public awareness that this type of 24/7 surveillance—and the unprecedented detailed level of data it generates—should be accompanied by measures that support personal data protection. It is important to note that these privacy risks also apply outside the housing context. For example, seniors centers that use (or are planning to use) sensors to monitor participants and collect the generated data are similarly exposed./= / \u3e/= / \u3eBenefits of sensor surveillance and monitoring of personal data must be balanced with safeguarding protections, especially for cognitively impaired older adults
Are Privacy Laws Deficient?
Get PDFPrivacy law around the world is deficient because it ignores design. Lawmakers have attempted to establish limits on the collection, use, and distribution of personal information. But they have largely overlooked the power of design. They have discounted the role that design plays in facilitating the conduct and harm privacy law is meant to prevent. Design pitches and picks privacy winners and losers, with people as data subjects and surveillance objects often on the losing side
What About #UsToo?: The Invisibility of Race in the #MeToo Movement
Get PDFWomen involved in the most recent wave of the #MeToo movement have rightly received praise for breaking long-held silences about harassment in the workplace. The movement, however, has also rightly received criticism for both initially ignoring the role that a woman of color played in founding the movement ten years earlier and in failing to recognize the unique forms of harassment and the heightened vulnerability to harassment that women of color frequently face in the workplace. This Essay highlights and analyzes critical points at which the contributions and experiences of women of color, particularly black women, were ignored in the moments preceding and following #MeToo’s resurgence. Ultimately, this Essay argues that the persistent racial biases reflected in the #MeToo movement illustrate precisely why sexual harassment doctrine must employ a reasonable person standard that accounts for complainants’ different intersectional and multidimensional identities
Will Courts Allow States to Regulate Drug Prices?
Get PDFPharmaceuticals are consuming increasingly large portions of U.S. state budgets, and high prices are preventing patients from getting, and adhering to, essential medicines. In mid-May 2018, President Donald Trump announced a heavily hyped but relatively modest federal plan to bring down drug prices. Meanwhile, several states are moving forward with their own solutions, and Maryland’s approach is particularly ambitious. In 2017, responding to notorious cases such as the 5000% increase in the cost of Daraprim (pyrimethamine) and the 10-fold increase in the cost of EpiPens (epinephrine auto-injectors), Maryland enacted a statute that prohibits manufacturers from “price gouging” on any “essential off-patent or generic drug.
Can Rationing Through Inconvenience Be Ethical?
Get PDFIn this article, we provide a comprehensive analysis and a normative assessment of rationing through inconvenience as a form of rationing. By “rationing through inconvenience” in the health sphere, we refer to a non-financial burden (the inconvenience) that is either intended to cause or has the effect of causing patients or clinicians to choose an option for health‐related consumption that is preferred by the health system for its fairness, efficiency, or other distributive desiderata beyond assisting the immediate patient. We argue that under certain conditions, rationing through inconvenience may turn out to serve as a legitimate and, compared to direct rationing, even a preferable tool for rationing; we propose a research agenda to identify more precisely when that might be the case and when, alternatively, rationing through inconvenience remains ethically undesirable. After defining and illustrating rationing through inconvenience, we turn to its moral advantages and disadvantages over other rationing methods./= / \u3e/= / \u3eWe take it as a starting assumption that rationing, understood as scarce‐resource prioritization, is inevitable and, in a society that has goals beyond optimizing health care for individual patients—such as improving societal health care, education, or overall welfare—prudent and fair