5033 research outputs found
Sort by
Judging Opportunity Lost: Race-based Affirmative Action and Equality Jurisprudence After Fisher v. University of Texas
No full textWithin United States history, social and judicial understandings of the Constitution’s pronouncement, “[N] or shall any State deny to any person within its jurisdiction equal protection of the laws,” have been deeply conflicted when applied to the concept of race. For example, in 1896, in the case of Plessy v. Ferguson , the U.S. Supreme Court held that state laws requiring racially segregated public accommodations did not violate the Equal Protection Clause of the Fourteenth Amendment. This endorsement of segregation as being consistent with the goals of equality, however, was famously revisited in 1954, in Brown v. Board of Education, where the Court struck down Plessy ’s “separate but equal” mandate. In so doing, the Court signaled that the language of the Fourteenth Amendment should be understood as rejecting state-enforced racial segregation as constitutionally permissible. As shifting as the Court’s treatment of race has been, these two cases reflect the Court dealing with programs designed to disadvantage racial minorities. Even more controversial in our country’s recent history, however, have been state considerations of race that have advantaged members of certain discrete minority racial groups. These programs, which have been constructed for myriad purposes including remedying past racial exclusion to fostering racial inclusion and diversity, have typically come to be referred to as affirmative action
The Family, the State, and American Political Development as a Big Tent: Asking Basic Questions about Basic Institutions
Get PDFThis article, contributed to a symposium on “The Family, the State, and American Political Development”, evaluates the proposition that the relationship between the basic institutions of the family and the state should be more central to the study of American political development (“APD”). It argues that, happily, such relationship is no longer as neglected by scholars as it once was, but that much work remains to be done. The article begins by comparing parallel efforts by pioneering feminist political and legal theorists to put on the table such issues as the public/private distinction between the polity and the family, assumptions about the role of the family (and of women’s wifely and maternal labor) in the political order, and injustice within the family. With the emergence of the subfield of APD and of “historical institutionalism”, some political scientists and historians (particularly feminist historians) also produced valuable studies of the historical development of public policy concerning families and the welfare state, treating gender as a salient category of analysis. The article argues that legal scholars also regularly examine the evolution over time not only of family definitions, forms, and gender roles, but also of how various forms of the state have regulated and supported the family. It proposes that we view the study of APD as a “big tent” within which scholars from diverse disciplines may benefit from fruitful conversations about parallel inquiries. To indicate the importance of the contextual and temporal examination of the family and the state, the article analyzes the contrasting approaches to the institution of marriage and governmental interest in it in the majority and dissenting opinions in the Obergefell v. Hodges (2015), the landmark case holding that same-sex couples may exercise the fundamental right to marry in every state
A Story of Three Bank-Regulatory Legal Systems: Contract, Financial Management Regulation, and Fiduciary Law
Get PDFHow should banks be regulated to avoid their failure? Banks must control the risks they take with depositors\u27 money. If depositors lose their trust in their banks, and demand their money, the banks will fail. This article describes three legal bank regulatory systems: Contract with depositors (U.S.); a mix of contract and trust law, but going towards trust (Japan), and a full trust-fiduciary law regulating banks (Israel). The article concludes that bank regulation, which limits the banks\u27 risks and conflicts of interest, helps create trustworthy banks that serve their country best
An Assessment of the Human Subjects Protection Review Process for Exempt Research
Get PDFMedical and public health research includes surveys, interviews, and biospecimens - techniques that do not present substantial risks to subjects. Consequently, this research is exempt from regulation under the Federal Common Rule. Nevertheless, at many institutions, exempt research is frequently subject to the same regulatory process that is required for non-exempt research, requiring the consumption of time and resources for review by Institutional Review Board members or staff. The federal government has indicated an intention to reform and centralize this system, but has not yet specified the form that it will use instead. By examining the policies of the top 50 research institutions, this article assesses institutional practices surrounding exempt research, quantifies the extent of exempt-research review requirements, documents a problem of over-compliance, and makes recommendations for reform
Class-Based Affirmative Action, or the Lies that We Tell About the Insignificance of Race
Get PDFThis Article conducts a critique of class-based affirmative action, identifying and problematizing the narrative that it tells about racial progress. The Article argues that class-based affirmative action denies that race is a significant feature of American life. It denies that individuals - and groups - continue to be advantaged and disadvantaged on account of race. It denies that there is such a thing called race privilege that materially impacts people’s worlds. Moreover, this Article suggests that at least part of the reason why class-based affirmative action has been embraced by those who oppose race-based affirmative action is precisely because it denies that race matters, has mattered, and probably will continue to matter unless we make conscious efforts to make race matter less.
The Article proceeds in two Parts. Part I locates class-based affirmative action doctrinally. Specifically, this Part identifies class-based affirmative action as the heir of the “suspect class” to “suspect classification” shift - a shift that tells its own lie about race. The substance of this lie is that those who exist at the top of racial hierarchies are as vulnerable to denigration, stigmatization, and subordination on account of race as are those who exist at the bottom of racial hierarchies. Part II goes on to demonstrate that class-based affirmative action suffers from the same infirmities from which race-based affirmative action is charged to suffer. It argues that the reason why proponents of class-based affirmative action are sanguine about these infirmities when they are present in class-based programs, but loathe them when they are present in race-based programs, is because their opposition to race-based affirmative action is not due to these infirmities. Rather, it is due to their disdain of the work that race-based affirmative action performs. That is, race-based programs function to assert, loudly, that race still matters and does so in powerful ways. Many proponents of class-based affirmative action resist this function.
Moreover, class-based affirmative action functions to assert that we, as a society, have entered a post-racial future. That is, class-based affirmative action tells a lie about the insignificance of race. Many proponents of class-based programs likely find these programs attractive and comforting for that very reason. The importance of this Article is that it uncovers the narrative work that class-based affirmative action performs, and it argues that those who are interested in racial justice ought to resist these programs because of their dangerous discursive effects
Delinking Investment in Antibiotic Research and Development from Sales Revenues: The Challenges of Transforming a Promising Idea into Reality
Get PDF1. The current business model for antibiotics is plagued by market failures and perverse incentives that both work against conservation efforts and provide insufficient rewards to drive the development of much-needed new treatments for resistant infection.
2. Many new incentive mechanisms have been proposed to realign incentives and support innovation and conservation over the long term. The most promising of these are based on the idea of delinking rewards from sales volume of the antibiotic — the notion of “delinkage.”
3. Some critical design issues for delinkage remain, such as how to secure access to badly needed new products when resistance renders existing treatments ineffective, an increasingly urgent global problem. The issue of global access to antibiotics is not sufficiently addressed de facto by a delinked mechanism, and, as such, it must be addressed explicitly through specific design features of new mechanisms, including defining the eligibility criteria for delinkage rewards and appropriate management of intellectual property.
4. The idea of establishing a new business model to drive antibiotic development and improve conservation currently has the world’s attention. We must now work quickly to examine the remaining design questions to address this major public health concern for the longer term
Reading DeBoer and Obergefell through the Moral Readings Versus Originalisms Debate: From Constitutional Empty Cupboards to Evolving Understandings
Get PDFThis article assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation by evaluating the momentous constitutional controversy in the United States over access by same-sex couples to civil marriage. Justice Kennedy’s landmark opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing dual forms of evolving understanding: of constitutional guarantees of equality and the “promise of liberty” and of the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry – and marriage – and stressed the role of “insight” and generational progress. Evolving understanding played a similar role in Goodridge v. Department of Public Health (Mass. 2013), which provided a template for Kennedy’s opinion. This article also demonstrates how the contrasting approaches to interpretation in DeBoer v. Snyder (reversed by Obergefell) previewed Obergefell’s interpretative battle, but with the sides reversed. Some legal scholars criticized DeBoer and offered originalist arguments for same-sex marriage, but those arguments persuaded neither other originalist scholars nor the Obergefell dissenters. The article enlists the “moral reading” approach developed in James E. Fleming’s Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms (2015). Such moral readings have been crucial for making the Fourteenth Amendment less of (in Justice Ginsburg’s words) an “empty cupboard” for gay men and lesbians, just as they have played a role in making it less empty in the context of sex equality
Adjudicating Risk: AIDS, Crime, and Culpability
Get PDFThe AIDS epidemic continues to pose significant public health challenges, especially given that the spread of the virus outpaces the AIDS response.1 Importantly, HIV continues to disproportionately impact socially and economically marginalized communities. In countries with concentrated epidemics,2 it is racial minorities, sex workers, men who have sex with men, and drug users who face the brunt of the epidemic.3 In the United States, the data is startling4 : 44% of new infections were among African-Americans, and among African-Americans contracting HIV, 57% were among gay and bisexual men.5 In 2016, the CDC found that one in two Black men who have sex with men (MSM), one in four Hispanic MSM, and one in eleven White MSM will contract HIV.6
One of the many tools mobilized to curb the spread of HIV is the criminal law. In particular, the criminalization of HIV transmission and exposure sets out to penalize individuals who expose or transmit HIV to another person. New advancements in the science of HIV transmission suggest, however, that individuals on anti-retroviral therapy (ART) that have a low viral load are significantly less infectious.7 This new data, in turn, impacts the potential culpability of the individual living with HIV accused of exposing another to HIV.
In a novel contribution to the existing literature on the criminalization of HIV,8 this paper examines two cases, R v. Mabior9 and Rhoades v. State, 10 in which courts adjudicate the question of risk of transmission. This paper argues that while the court’s consideration of treatment and low viral load to mitigate culpability is a positive move forward, it is important to note that the pre-existing maldistribution of access to HIV treatment means that only some of the accused will benefit legally from these scientific advancements. This could have a disparate effect on racial minorities who have less access to ART and, in turn, will not have the capacity to mitigate potential culpability by arguing that they are less likely to transmit HIV.
This paper proceeds as follows. Part I draws on emerging scholarship on the carceral state to place the criminalization of HIV transmission and exposure in its broader historical and social context. Part II provides an overview of scientific advances on the risk of transmission. Part III considers two prosecutions of individuals living with HIV for exposing another to the virus and examines the role of scientific advances on risk in the courts’ deliberations on culpability. Part IV examines the distributional consequences of these decisions for those without access to ART
Obscurity and Privacy
No full text‘Obscurity’ is a distinctive concept in the privacy literature that has recently been gaining attention due to increasing frustration with the theoretical and practical limits of traditional privacy theory. Obscurity identifies some of the fundamental ways information can be obtained or kept out of reach, correctly interpreted or misunderstood. Appeals to obscurity can generate explanatory power, clarifying how advances in the sciences of data collection and analysis, innovation in domains related to information and communication technology, and changes to social norms can alter the privacy landscape and give rise to three core problems: 1) new breaches of etiquette, 2) new privacy interests, and 3) new privacy harms
Dealing in Desire: Asian Ascendancy, Western Decline, and the Hidden Currencies of Sex Work. By Kimberly Kay Hoang. Oakland: University of California Press, 2015. Cosmopolitan Sex Workers: Women and Migration in a Global City. By Christine B. N. Chin. Oxford: Oxford University Press, 2013. Street Corner Secrets: Sex, Work, and Migration in the City of Mumbai. By Svati P. Shah. Durham, NC: Duke University Press, 2014.
No full textKimberly Kay Hoang’s Dealing in Desire, Christine Chin’s Cosmopolitan Sex Workers, and Svati Shah’s Street Corner Secrets mobilize ethnographic methods to tell the stories of the role of transacting sex in the generation of livelihoods (Shah) and the movement of goods and services in local, national, and global economies (Hoang, Chin). By describing how women’s bodies and lives are conscripted into economic systems that simultaneously deprive and grant actors agency, each book challenges the simplistic notion that the transaction of sex is easily understood only as exploitation. Instead, we see through the lives of numerous characters—sex workers, clients, business owners, and intermediaries—that participation in the sex industry occurs for a host of reasons, including economic gain, a desire to perform masculinity, the hope of escaping patriarchy, life enhancement, or survival. Each player is a product of our contemporary moment: neoliberal economic policies, including privatization and free-trade regimes, not only contribute to the movement of people to find work but also produce the rise of intermediary actors to facilitate migration or the eventual (informal or formal) labor contract