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The Impact of Law on the Right to Water and Adding Normative Change to the Global Agenda
Get PDFA resolution was passed at the United Nations Water Conference in 1977 to achieve universal access to sufficient water by 1990. This bar was lowered significantly as part of the Millennium Development Goals (MDGs). However, as the MDGs come to an end this year, even this reduced benchmark will not be reached. Water is inescapably intertwined with every other MDG, as well as the ability to exercise any human right. Consequently, the failure to achieve this goal implores an exploration of its causes. As the global community embarks on setting a new post-MDG agenda, one currently overlooked aspect is the impact that the law -- in particular international law through the human rights framework -- has on reaching universal access to water. The incorporation of progressive realization into human rights documents and, subsequently, national laws, has enabled governments and the international community to hide behind ambiguous demands and excuses of limited resources and democratic accountability, impeding much needed progress. The South African Constitutional Court decision in Mazibuko & Others v. The City of Johannesburg demonstrates how a government can utilize progressive realization to implement a discriminatory policy, while shielding itself from the responsibility of failing to provide sufficient water to its citizens. The new global agenda should strive to remove the application of progressive realization from the right to water. In doing so, it can empower citizens to hold their governments accountable and create a normative change in how water is viewed internationally. An emphasis on the law\u27s impact will stimulate efficient development not only in terms of water, but in every facet of the global agenda moving forward
African Jurisprudence for Africa\u27s Problems: Human Rights Norm Diffusion and Norm Generation Through Africa\u27s Regional International Courts
No full textAfrica’s regional and sub-regional human rights courts—including the Economic Community of West African States Community Court of Justice (ECOWAS Court), the East African Community Court of Justice, and the African Court of Human and Peoples’ Rights—are worthy of increased attention from scholars of international law and relations. Groundbreaking decisions are emerging from these institutions, and arguably the decisions of African judges are generating new substantive human rights norms and enforcing heretofore unenforceable human rights. Africa’s regional and sub-regional human rights courts are also worthy of study as comparative cases, that is, worthy of study for the ways in which their design, function, and effectiveness can inform theories and models of human rights norm diffusion and compliance with international law, which are based in large part on study of western institutions
Focusing the Multifactor Test for Employee Status: The Restatement’s Entrepreneurial Formulation
Get PDFThe American Law Institute’s twenty-first century mission to restate for the first time American employment law carried the responsibility to provide more clear guidance on the law’s critical distinction between employees and independent contractors. This distinction delineates the scope not only of federal employee protection and benefit statutes, but also of employee protections and benefits conferred by state statutory and common law.
A Restatement of Employment Law, however, like any Restatement, could not formulate clearer or otherwise more desirable doctrine from the whole cloth of the views and values of the Reporters or the ALI membership. The Restatement could not offer a new rule of decision. It could only offer a better explanation of what has been the underlying basis of a majority of the better decisions limning the employee-employer distinction. Doing so required close examination of the various unstructured multifactor tests that had been used over the past several decades. The Restatement had to determine how and why the better decisions applied the right-to-control factor and the other factors listed among the various multifactor tests. The Restatement needed to provide guiding principles to render the multifactor tests more focused and predictable.
We did so by describing as independent businesspersons those with retained discretion to enhance their independent returns. Truly independent businesspersons retain discretion to enhance their returns or profits by making important business decisions in their own interest. These important decisions, the cases revealed, include the allocation of the labor of others, the allocation of capital, and the allocation of the service providers’ own labor. Or, as we expressed it in the black letter of § 1.01(2), “whether to hire and where to assign assistants, whether to purchase and where to deploy equipment, and whether and when to provide service to other customers.
Reactive to Proactive: Title IX\u27s Unrealized Capacity to Prevent Campus Sexual Assault
Get PDFThis article examines the efforts to use Title IX to address the problem of sexual assaults on college campuses. It seeks to explain an odd phenomenon: universities seem to put more resources into addressing assaults that have already occurred than they do into preventing sexual assaults from occurring. To better understand how universities implicitly frame their options for addressing sexual assault, I’m going to posit that there are two particularly prevalent analytic approaches to sexual assault prevention. I’m going to call one the law enforcement approach and the other the public health approach. I’m going to link the law enforcement approach to the analytical framework we use in law when we focus on individual choice and character, in criminal law in particular. I’m going to link the public health approach to the violence prevention framework used by researchers within public health institutions such as the Centers for Disease Control (“CDC”)
Sixty Years since the Kol Ha\u27am Decision: What More Is There to Say
Get PDFIs there anything more to say about Kol Ha\u27am? This is essentially a philosophical question. Is it possible to exhaust the variety of possible interpretations of a historical event, of a judicial opinion? Most researchers would agree that history, the history of the law included, cannot be exhausted. This is not merely a question of the availabiltiy of new materials, but of the writer\u27s point of view. My point of departure is that there has to be something more to say, if only because we have before us a text that was created in a historical context. In discussing Kol Ha\u27am, I shall try to focus on the boarder picture of the 1950s, and to raise a related - very important but neglected - question in Israeli constitutional law, that regarding the procedure for embarking on war
\u3cem\u3eMicrosoft\u3c/em\u3e after Fifteen Years
No full textUnited States v. Microsoft Corp. (Microsoft III) is now fifteen years old, and that I would write such a long introduction to a reprint of significant portions from the opinion is a sign its significance has not died out. Just the opposite, I think it will become more significant in the near future, and not only because of its impact on U.S. antitrust law. The decision lays the groundwork for international enforcement of antitrust in high technology markets, at least as we have come to know them, and this is likely to continue to be significant for the foreseeable future
Brief of Amici Curiae Ascentria Care Alliance, Coalition Against Trafficking in Women, Children’s Advocacy Center of Suffolk County, Demand Abolition, EVA Center, and My Life My Choice in Support of Plaintiff-Appellee on the Constitutionality of An Act Relative to the Commercial Exploitation of People, Commonwealth of Massachusetts v. Tyshaun McGhee, et al.
Get PDFThe victims\u27 story here is a heartbreaking one, and sadly, all too familiar. Too often, victims are targeted, advertised online, and transported for purposes of prostitution while subjected to poor conditions, coercion, and often physical violence. Recognizing that human trafficking is a pervasive and troubling epidemic, Congress and state legislatures around the country have taken actions to criminalize trafficking, punish its offenders, and provide necessary services for trafficking victims. In 2011, Massachusetts enacted An Act Relative to the Commercial Exploitation of People ( Massachusetts Anti-Trafficking Statute ) to address the problem of trafficking in the Commonwealth. Among other key provisions, the Massachusetts Anti-Trafficking Statute makes it a felony to traffic persons for sexual servitude. G.L. c. 265, § 50
Cases and Materials on Discovery Practice in the Federal Courts, 2nd Edition
No full textThis is a casebook on discovery practice in the federal courts. It is designed for classroom use in law school. The book begins with the History of Discovery, followed by an Introduction to the Federal Rules Regarding Discovery, the Scope of Discovery, Methods of Discovery, Electronic Discovery, and Discovery Abuse and Sanctions. Because the book is designed for use in the classroom, I rely heavily on cases, other primary authority, advisory committee notes, brief excerpts from secondary sources, and the rules themselves. Each case or other authority is preceded by a note where I try to guide the reader with back-ground or questions that I hope highlight the most important aspects of the reading. The book also contains in-depth discussion of the 2015 amendments to the discovery rules.https://scholarship.law.bu.edu/books/1328/thumbnail.jp
Fashioning a General Common Law for Employment in an Age of Statutes
Get PDFIn the current post-Erie age of statutes the Supreme Court continues to have potential influence over the development of a “general” common law used to decide recurring issues governed by state law. This influence, which has drawn little commentary, derives from the Court’s authority to consider analogous issues when filling gaps in federal statutes, sometimes through express reliance on general common law. The influence is through the power to persuade, like that of the federal judiciary in its general common lawmaking age of Swift, rather than through the power to command, like that of the federal judiciary in the formulation of the specialized federal common law of the post-Erie era.
The Court’s post-Erie role in general common law making has been evident recently in a series of decisions interpreting federal employment statutes. In those decisions the Court has relied in part on common law as formulated in the Restatement Second of Agency, but also has modified that formulation in ways that could enhance the common law applied by state courts. The American Law Institute in turn has considered and in part relied upon the Court’s participation in the common law making process in the production of its Restatement of Employment Law, which will be granted final approval in May, 2014. By using examples from the Court’s recent employment law decisions, this article highlights how the Court can influence common law through its delegated authority to make law through statutory interpretation
The Economics of Class Actions and Class Action Waivers
Get PDFClass action litigation has generated a series of recent Supreme Court decisions imposing greater federal court supervision over the prosecution of collective injury claims. This group of cases raises the question whether class action waivers should be permitted on policy grounds. I examine the economics of class actions and waivers in this paper. I distinguish between the standard one-on-one litigation environment and the class action environment. In the standard environment, waivers between informed agents enhance society\u27s welfare. In the class action environment, in contrast, not all waivers are likely to enhance society\u27s welfare