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Immigration judges were always overworked. Now they’ll be untrained, too
No full textAmerica’s immigration judges have long been overburdened and under-resourced. One immigration judge has compared her job to “doing death-penalty cases in a traffic-court setting.” The stakes are high, while support and procedural protections for noncitizens facing deportation are negligible. It’s no surprise, then, that immigration judges suffer greater stress and burnout than prison wardens or doctors in busy hospitals
Decreasing Smoking but Increasing Stigma? Anti-tobacco Campaigns, Public Health, and Cancer Care
Get PDFPublic health researchers, mental health clinicians, philosophers, and medical ethicists have questioned whether the public health benefits of large-scale anti-tobacco campaigns are justified in light of the potential for exacerbating stigma toward patients diagnosed with lung cancer. Although there is strong evidence for the public health benefits of antitobacco campaigns, there is a growing appreciation for the need to better attend to the unintended consequence of lung cancer stigma. We argue that there is an ethical burden for creators of public health campaigns to consider lung cancer stigma in the development and dissemination of hard-hitting anti-tobacco campaigns. We also contend that health care professionals have an ethical responsibility to try to mitigate stigmatizing messages of public health campaigns with empathic patient-clinician communication during clinical encounters
Follow Buddies and Block Buddies: A Simple Proposal to Improve Civility, Control, and Privacy on Twitter
No full textThe 2016 election has put squarely on the public agenda a series of questions related to the norms of social media, everything from the proliferation of fake news on Facebook to the trolling culture of Twitter. These questions are not new. The culture of abuse online towards women, for example, is a matter about which one of us wrote a book. But over the last few months, the concerns—spurred in part by a president-elect and his followers who participate actively in Twitter abuse of opponents and critics—have vaulted into the mainstream.
The problems vary significantly by social media platform. On Twitter, the pressing issue is civility: values of free expression and individual user freedom often get pitted against norms of decency and the ability to participate online free of harassment and abuse
Privacy\u27s Trust Gap
Get PDFIt can be easy to get depressed about the state of privacy these days. In an age of networked digital information, many of us feel disempowered by the various governments, companies, and criminals trying to peer into our lives to collect our digital data trails. When so much is in flux, the way we think about an issue matters a great deal. Yet while new technologies abound, our ideas and thinking — as well as our laws — have lagged in grappling with the new problems raised by the digital revolution. In their important new book, Obfuscation: A User’s Guide for Privacy and Protest (2016), Finn Brunton and Helen Nissenbaum offer a manifesto for the digitally weak and powerless, whether ordinary consumers or traditionally marginalized groups. They call for increased use of obfuscation, the deliberate addition of bad information to interfere with surveillance; one that can be “good enough” to do a job for individuals much or even most of the time. Obfuscation is attractive because it offers to empower individuals against the shadowy government and corporate forces of surveillance in the new information society. While this concept represents an important contribution to the privacy debates, we argue in this essay that we should be hesitant to embrace obfuscation fully.
We argue instead that as a society we can and should do better than relying on individuals to protect themselves against powerful institutions. We must think about privacy instead as involving the increasing importance of information relationships in the digital age, and our need to rely on (and share information with) other people and institutions to live our lives. Good relationships rely upon trust, and the way we have traditionally thought about privacy in terms of individual protections creates a trust gap. If we were to double down on obfuscation, this would risk deepening that trust gap. On the contrary, we believe that the best solution for problems of privacy in the digital society is to use law to create incentives to build sustainable, trust-promoting information relationships.
We offer an alternative frame for thinking about privacy problems in the digital age, and propose that a conceptual revolution based upon trust is a better path forward than one based on obfuscation. Drawing upon our prior work, as well as the growing community of scholars working at the intersection of privacy and trust, we offer a blueprint for trust in our digital society. This consists of four foundations of trust — the commitment to be honest about data practices, the importance of discretion in data usage, the need for protection of personal data against outsiders, and the overriding principle of loyalty to the people whose data is being used, so that it is data and not humans that become exploited. We argue that we must recognize the importance of information relationships in our networked, data-driven society. There exist substantial incentives already for digital intermediaries to build trust. But when incentives and markets fail, the obligation for trust-promotion must fall to law and policy. The first-best privacy future will remain one in which privacy is safeguarded by law, in addition to private ordering and self-help
Paying for Attendance: Using Incentives to Combat Chronic Absenteeism
Get PDFStudents with poor attendance miss opportunities to learn social and academic skills.\u27 They perform worse on achievement tests. 2 They are also less likely to graduate.3 A student who misses school in as early as the first grade is significantly more likely to eventually drop out of high school.4 Individuals who drop out see a significant loss in earnings and are more likely to be jobless; women who drop out make about 60% of what female high-school graduates earn, and men who do not graduate lose approximately $9,564 in annual wages. Because high-school dropouts earn less than those who do not 6 drop out, tax revenues are diminished. Further, the public spends more on safety-net assistance to those who fail to graduate. The dropout rate has also been linked to the United States\u27 rising prison population: incarceration rates of individuals without a high-school degree are about sixty-three times higher than incarceration rates of those who graduate college. And young black men who leave high school face a nearly one in four chance of being in institutionalized in jail, prison, or a juvenile detention center. literature that suggests paying youth to attend school would be an effective method to tackle some types of chronic absenteeism. Finally, Part IV explores reasons why using cash incentives to encourage children to attend school regularly might be an ineffective way to address the obstacles facing chronically absent youth.
The Note concludes that although paying for attendance would likely reduce absenteeism among some students, it would not be a panacea to the challenges faced by the chronically absent. Instead, a pay-for-attendance program might create new obstacles to achievement. Although policymakers including federal, state, and local elected officials, as well as legislative and executive staff working on education and poverty-related causes-may be initially concerned with how incentives would impact students\u27 self-motivation and whether cash rewards would be spent towards a socially useful or counterproductive end, these issues do not present insurmountable challenges to the success of a pay-for-attendance program. However, policymakers should be concerned that paying for attendance is likely to create thorny school disciplinary issues that could increase suspensions and bolster the school-to-prison pipeline. Thus, until further research clarifies how to avoid the harms of a pay-for-attendance program, such a policy is unlikely to help students more than it hurts them
Incentives, Lies, and Disclosure
Get PDFProsecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony.
Due process requires, and legal doctrine assumes, that when such inducements are disclosed to the jury, they will discount the witness testimony accordingly. However, juries’ success in doing so is an empirical question. We conducted three randomized experiments with 1,000 human subjects in roles of witnesses and jurors deciding vignettes based on real cases. We find that incentives have large effects on witnesses, allowing prosecutors to routinely procure favorable testimony regardless of its truth. Yet, disclosure has no detectable effects on either witnesses or jurors.
We discuss two potential reforms. First, courts could borrow from the practice with expert witnesses and use the current rules of evidence to conduct Daubert-like pretrial screening of incentivized witnesses for reliability. We frame the appropriate counterfactual question about whether the incentives would cause a witness to give the same testimony even if it were false. Second, we present the novel suggestion that prosecutors could decide whether to offer benefits to a witness based on whether she will testify to material information, but without knowing whether the information is favorable to the Government. These mechanisms may preserve the value of incentives to produce information, while minimizing false testimony
Abortion in a Post-Truth Moment: A Response to Erwin Chemerinsky and Michele Goodwin
Get PDFIn Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin respond to the crisis of abortion rights in our current political moment. While preserving the right to abortion is an ongoing challenge for reproductive-justice advocates and lawyers, the arrival of a new Republican administration led by Donald Trump and a Republican majority in the House and Senate heightens these concerns. In the face of ongoing and new threats to abortion access, Chemerinsky and Goodwin argue that abortion should be treated as a woman’s private choice. I agree with Chemerinsky and Goodwin, as all supporters of abortion rights should. This response to their insightful essay situates their argument in a set of debates and discussions that undergird many of the logics utilized by the court to justify their choice of standard: medical, psychological, and scientific evidence on abortion
Financing the Benefit Corporation
Get PDFThe hybrid organizational forms designed with social enterprises in mind have proven to be hothouse flowers. Flourishing in state legislatures, even those with the most distinguished pedigrees-such as Delaware\u27s public benefit corporation\u27-have so far failed to thrive in the marketplace. Fortunately, hybrid financial instruments offer a source of strength and stability that can help social enterprise to take root.
This Article examines the valuable role that financial instruments can play in providing social enterprises with the capital they need to grow. Debt with equity features and equity with debt characteristics constitute the lion\u27s share of such financial tools. More exotic financial tools, including some tailor-made for social enterprise, can be deployed alongside hybrid debt and equity instruments that any venture might use.
To set the stage, Part I provides a brief overview of the achievements of the benefit corporation to date. These include their incredible success in state legislatures and their consciousness-raising about the legitimacy and value of companies dedicated both to achieving profits and generating social good. Part II considers next steps. In particular, it lays out the challenges faced by benefit corporations and other social enterprises seeking capital to enable them to survive and scale. Part III, which makes up the bulk of the essay, considers a variety of financial tools that could be harnessed to meet these challenges. Although common stock and standard corporate bonds will often fail to align the interests of entrepreneurs and investors in double-bottom line ventures, a variety of less conventional financial instruments offer considerable promise
Reshaping Third-Party Funding
Get PDFThird-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. law firms are actively seeking advice (including from this Author) regarding partnering with third-party funders or starting their own internal thirdparty funders to fund their own cases, both of which are controversial practices. This Article analyzes the benefits and drawbacks of third-party funders becoming internal partners of U.S. law firms, rather than remaining as external investors. To that end, this Article diagrams the existing structure of the third-party funding transaction and suggests new possible structures. This Article then explores how those new structures may affect procedure, evidentiary, and ethics rules and reshape both the third-party funding industry and the legal services industry. This Article concludes that careful, limited experimentation would reveal whether such a practice is a viable, desirable addition to the menu of third-party funding transactions or whether the existing third-party funding transaction paradigm remains the best option. Ultimately, this Article aims to start a conversation about rethinking the structure of third-party funding transactions
(Public) Health and Human Rights: Of Bridges and Matrixes
Get PDFResponding to President Trump\u27s anti-Muslim executive order restricting immigration, the American Public Health Association (APHA) issued a press release recommitting the organization to human rights, noting that health and human rights are inextricably linked. The organization underlined the basic human rights norm of nondiscrimination, noting that all people should be valued equally, no matter their race, gender, sexual orientation, religion, immigration status, income or geographic region and that whenever any groups of people are prevented from experiencing basic human rights, all of our communities suffer (APHA 2017). Human rights, especially the right to health, have also been at the core of the work of global public health organizations. The World Health Organization (WHO) 1948 Constitution, for example, enshrines the highest attainable standard of health as a fundamental right of every human being. Achieving the right to health is broader than health care, and includes the right to food, clean water, housing, work, education, nondiscrimination, access to information, and political participation. The right to health also includes individual freedoms (e.g., bodily integrity, sexual and reproductive freedom, freedom from torture and nonconsensual medical experimentation) (WHO 2015)