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Inefficiently Automated Law Enforcement
Get PDFFor some crimes the entire law enforcement process can now be automated. No humans are needed to detect the crime, identify the perpetrator, or impose punishment. While automated systems are cheap and efficient, governments and citizens must look beyond these obvious savings as manual labor is replaced by robots and computers. Inefficiency and indeterminacy have significant value in automated law enforcement systems and should be preserved. Humans are inefficient, yet more capable of ethical and contextualized decision-making than automated systems. Inefficiency is also an effective safeguard against perfectly enforcing laws that were created with implicit assumptions of leniency and discretion. This Article introduces a theory of inefficiently automated law enforcement built around the idea that those introducing or increasing automation in one part of an automated law enforcement system should ensure that inefficiency and indeterminacy are preserved or increased in other parts of the system. A theory of governance is critical for those who implement and administer automated law enforcement systems. Without it, systems become unmoored from ethics. Ironically, failure to responsibly automate law enforcement risks creating systems that actually undermine law and democracy. One way to preserve ethics in automated law enforcement systems is to preserve ethical actors, inefficiency and all
Back to Basics: Public Adjudication of Corporate Atrocities Torts
Get PDFThe editors of this online symposium invited me to contribute to the subject of an argument I have recently advanced. This argument is that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.
Corporate atrocities, which are the symposium’s focus, may be crimes, but they also have a tort dimension. If corporations, for example, aid and abet the Argentine state torture apparatus or the Nigerian paramilitary campaign against protesters, they are also engaged in the torts of, respectively, battery and wrongful death. The crime-tort connection in this context in particular provides an opportunity to reflect on why the resolution of corporate international mass torts should be the province of public rather than private adjudication
Fairer Uses
Get PDFA response to Professor Joseph Liu’s paper on Fair Use, Notice Failure, and the Limits of Copyright as Property, this essay challenges Professor Liu to go even farther in his analysis and protection of the everyday audience of copyright works. In describing and analyzing what I term “fairer uses” on the basis of qualitative data from interviews of artists and authors who make and rely on copyrighted works for their own creativity and professional well-being, I support Professor Liu’s advocacy for maintaining “fuzzy boundaries” of fair use. Based on evidence from grounded practice of professional creators, their expansive application of fair use evidences a higher tolerance for infringement, a desire for fair remuneration as a dignitary matter rather than to satisfy investment-backed expectations, and overall “reasonableness” in the application of copyright law. As Liu documents, in the digital age more than ever “fairer uses” are more critical to fomenting creativity, self-expression and market-innovation of copyrighted works
Accounting for Rising Corporate Profits: Intangibles or Regulatory Rents?
Get PDFSince 1980, US corporate valuations have risen relative to assets and operating margins have grown. The possibility of sustained economic rents has raised concerns about economic dynamism and inequality. But rising profits could come from political rents or, instead, from returns to investments in intangibles. Using new data on Federal regulation and data on lobbying, campaign spending, R&D, and organizational capital, this paper finds that both intangibles and political factors account for a substantial part of the increase in profits, but since 2000 political factors are more important. A difference-in-differences analysis finds that major expansions of regulation increase profits significantly
Body of Preemption: Health Law Traditions and the Presumption against Preemption
Get PDFPreemption plays a prominent role in health law, establishing the contours of coexistence for federal and state regulatory authorities over health topics as varied as medical malpractice, insurance coverage, drug safety, and privacy. When courts adjudicate crucial preemption questions, they must divine Congress\u27s intent by applying substantive canons of statutory interpretation, including presumptions against preemption.
This Article makes three main contributions to health law and preemption doctrine. First, it identifies a variant of the presumption against preemption that applies to health laws-referred to throughout as the tradition presumption. Unlike the general presumption against preemption on federalism grounds, courts base this tradition presumption on a notion of state primacy that is rooted in tradition and unique to health regulation. Therefore, courts assume it is unlikely in most cases that Congress intended to preempt state health laws.
Second, this Article explores the tradition presumption\u27s accuracy as a description of health laws\u27 history and its utility as a gauge of congressional intent. Investigation reveals that it is unexamined, inaccurately broad, and subjective. Further, its rote perpetuation risks deterring meaningful inquiry into the context of federal health regulations. Even when courts invoke the tradition presumption to save worthy reform efforts from elimination by preemption, this blunt tool\u27s unstable construction has made it particularly vulnerable to critique.
Third, to remedy these infirmities, this Article proposes a scalpel approach to health law preemption analysis; it is designed to identify distinct regulatory traditions and reflect the heterogeneity of regulatory topics within the body of health law. The scalpel approach promotes a more accurate preemption analysis and a more coherent health law jurisprudence, while reserving the tradition presumption as a tiebreaker for indeterminate cases. By encouraging courts to relinquish monolithic notions of tradition in health law, the scalpel approach enables health law preemption analysis to accommodate the frequent departures from tradition
Medical Causes and Consequences of Home Foreclosures
No full textThe objective of this study was to elucidate the medical causes and consequences of foreclosure. We surveyed 90 households undergoing foreclosure in 2013–2014 in Maricopa County, Arizona on two occasions approximately five months apart. At baseline, median monthly household income was 1,350. Only 10% of respondents lacked health insurance when surveyed, although 28% had experienced a gap in coverage within the past two years. Fifty-seven percent identified a medical debt or another medical cause of their foreclosure, and 54% had taken on new debt to pay medical bills; 10% had mortgaged their home for this reason. Although 57% of respondents had a chronic condition requiring ongoing care, more than half reported delaying or skipping a needed medical visit. At follow-up, one-third of respondents had been unable to afford food, and 3 respondents reported becoming homeless; 46% said foreclosure had worsened their health; and 63% had already incurred new medical debts. Medical debt and medical problems frequently contribute to foreclosure, even among insured families. Foreclosure compromises access to care and basic necessities like food and shelter, and worsens self-reported health
A Culture of Health and Human Rights
No full textA culture of health can be seen as a social norm that values health as the nation’s priority or as an appeal to improve the social determinants of health. Better population health will require changing social and economic policies. Effective changes are unlikely unless health advocates can leverage a framework broader than health to mobilize political action in collaboration with non–health sector advocates. We suggest that human rights—the dominant international source of norms for government responsibilities—provides this broader framework. Human rights, as expressed in the Universal Declaration of Human Rights and enforceable treaties, require governments to assure their populations nondiscriminatory access to food, water, education, work, social security, and a standard of living adequate for health and well-being. The policies needed to realize human rights also improve population health, well-being, and equity. Aspirations for human rights are strong enough to endure beyond inevitable setbacks to specific causes
(Public) Health and Human Rights in Practice
No full textPublic health\u27s reliance on law to define and carry out public activities makes it impossible to define a set of ethical principles unique to public health. Public health ethics must be encompassed within—and consistent with—a broader set of principles that define the power and limits of governmental institutions. These include human rights, health law, and even medical ethics. The human right to health requires governments not only to respect individual human rights and personal freedoms, but also, importantly, to protect people from harm from external sources and third parties, and to fulfill the health needs of the population. Even if human rights are the natural language for public health, not all public health professionals are comfortable with the language of human rights. Some argue that individual human rights—such as autonomy and privacy—unfairly limit the permissible means to achieve the goal of health protection. We argue that public health should welcome and promote the human rights framework. In almost every instance, this will make public health more effective in the long run, because the goals of public health and human rights are the same: to promote human flourishing
Rewriting \u3cem\u3eRomer\u3c/em\u3e: From Illegitimate Emotions to Inadequate Reasons
No full textAuf den ersten Blick scheinen die Bereiche von Recht und Emotionen wenig miteinander zu tun zu haben, ist doch die Auffassung weit verbreitet, dass die Sphäre des Rechts von Normen und Werten bestimmt wird, deren Entstehung und Geltung unabhängig von Emotionen sind und auch sein sollten. Das Ziel des vorliegenden Bandes besteht darin, diese etablierte Auffassung in Frage zu stellen und näher zu erkunden, wie der Bedeutung von Rechtsgefühl und für die Sphäre des Rechts einschlägigen Emotionen angemessen Rechnung zu tragen ist. Leitend ist dabei die Frage, welche Emotionen welche Rolle im Bereich des Rechts spielen und gegebenenfalls auch spielen sollten