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Toward a Tobacco-free Generation — A Birth Date–Based Phaseout Approach
No full textDespite decades of public health efforts and advances in cessation treatments, smoking is still the leading cause of preventable disease, disability, and death in the United States. Smoking kills more people in this country than HIV, drug overdoses, alcohol use, motor vehicle crashes, and firearm-related injuries combined. Governments worldwide have tried to reduce tobacco use. In a development that could signal a new direction for tobacco regulation, one U.S. town’s policy aimed at creating a tobacco-free generation has successfully withstood legal challenge. The bylaw, passed by Brookline, Massachusetts, gradually phases out commercial tobacco by banning the sale of nicotine products to anyone born on or after January 1, 2000 (one of us cosponsored the bylaw). Eventually, no one will be old enough to purchase nicotine products. Tobacco retailers sued Brookline over the bylaw. A unanimous March 2024 Massachusetts Supreme Judicial Court decision upholding the tobacco-free generation (TFG) bylaw may now boost its viability as a model for other local and state governments. In response to the ruling, health boards in three other Massachusetts towns (Melrose, Stoneham, and Wakefield) voted to implement birth date–based phaseouts, and other municipalities have taken initial steps toward adopting this policy
The Last Colony of the Mind: Narrative, Legal Advocacy, and the Decolonization of Legal Knowledge
Get PDFPhilippe Sands’ The Last Colony1 tells the story of how Chagos Islanders won the right to return to the lands of their birth through a 2019 Advisory Opinion of the International Court of Justice (ICJ).2 In 1965, while the United Kingdom stood in the midst of conceding to the independence claims of myriad anti-colonialists throughout its imperial holdings, it took the anachronistic step of creating a colony—the British Indian Ocean Territory (BIOT).3 In flagrant violation of UN Resolution 1514,4 the United Kingdom detached the Chagos Archipelago from the colony of Mauritius. And between 1967 and 1973, the United Kingdom forcefully liquidated the Islands’ mostly Black African inhabitants so that the United States could use the island of Diego Garcia for a military base.5 In 2019, the ICJ sided with the government of Mauritius and the Chagos islanders in holding that the separation of the Chagos islands from Mauritius was a violation of international law, and the United Kingdom must end its control over the islands and allow the former inhabitants—individuals such as Madame Liseby Elysé—to return home.6
In this Article, I reflect on the kind of text that Philippe Sands has authored—a work of legal advocacy that departs from the specialized practice of doctrinal interpretation and argument, and that Sands instead grounds in legal archaeology, deterritorialized ethnography, autoethnography, and narrative. I applaud Sands’ The Last Colony as an example of two scholarly trends I wholeheartedly support: (1) the decolonization of (legal and academic) thought7 and (2) the increasing appreciation for the epistemological and methodological value of narrative in sociolegal inquiry and in legal advocacy.8
Domination happens not only through the brute force of armed occupation, counterinsurgency, and policing; but through domestic and international laws and processes (such as inter-state litigation before the ICJ),9 through the inculcating of “civic virtues” through state education, and even through the official recognition and suppression of language. It happens through the sanctioning of what constitutes “scholarly” discourse—through publication norms and tenure processes. In the Conclusion, I reflect on the need to decolonize the legal academy, and I recommend The Last Colony as one example of what that decolonization can look like
Innovative Approaches to On-Demand Continuing Legal Education Ethics Training: A Case Study
No full textIn the ongoing discussions about continuing legal education (CLE), concerns have been raised about the quality of programming that is created and delivered. Critics have emphasized the weaknesses in mandatory programs, arguing that requiring annual training on topics such as legal ethics tends to fall short of stated goals.1 Too often, it is said, such programs fail to deliver content in an engaging manner that is likely to improve competence.2 The picture conjured up is of the bored lawyer, sitting in the back of a room flipping through a newspaper or some other distraction, as CLE instructors passively discuss minute developments of the law that may have little direct connection to the lawyer’s area of practice or interests.
In this essay, we take no position on whether CLE should be mandatory and instead focus our attention on how quality CLE programming can be created. The observations we offer derive from our experience as joint creators of an on-demand video CLE ethics program produced in conjunction with the Practising Law Institute (PLI), one of the nation’s largest and best-known providers of CLE content. The program, titled Motivated Reasoning and Legal Ethics, 4 is, we believe, a useful case study to highlight ways that CLE programming can provide valuable ethics training to lawyers. Created in 2019 and made available primarily to PLI subscribers, the video program emphasizes the importance of teaching lessons from behavioral science on how lawyers make ethical decisions. Drawing on decades of social science research, the focus is on what is known as “motivated reasoning”—a well-documented phenomenon that describes a compendium of subtle psychological and situational factors that can have a significant effect on human decisionmaking.5 The program emphasizes many features of adult learning that have been identified as important to effectiveness: It focuses on a novel topic in a creative and flexible format and uses high-quality interactive techniques to engage viewers, including performances by trained actors who simulate real-world ethical scenarios that raise behavioral science concepts for discussion and reflection.
We offer this case study not to claim that all CLE ethics programming should be produced in a similar way. Indeed, we recognize that in some respects this model is limited because of the resources such programs can take to produce. Nevertheless, we believe that there are useful lessons to be drawn from this case study, both about the importance of teaching lawyers about how behavioral science informs ethical decision-making and more broadly about ways to create CLE ethics programming that is creative, engaging, and, we believe, effective as a teaching tool.
This essay proceeds in three parts. In Part I, we describe the social science behind motivated reasoning and why it is an important topic for ethics training of lawyers.7 Part II describes the Motivating Reasoning and Legal Ethics program, emphasizing aspects of the program that we believe are most useful for consideration by CLE content creators. In Part III, we offer our reflections on lessons from this experience, including suggestions for improvements for such programming in the future
The Price of Consent
Get PDFThis Article demonstrates how hierarchies in the international economy and in international financial institutions have facilitated the U.S.-led Global War on Terror (GWOT). Using U.S.-Pakistan relations as a case study, it shows how the United States has deployed its powerful position at the International Monetary Fund (IMF) to claim Pakistan\u27s consent for its military activities in the region. In the GWOT\u27s first decade, beginning in 2001, the United States openly sought forcible regime change, as in Afghanistan and Iraq; in its second and (now) third decades, the United States has waged covert counterinsurgency campaigns allegedly against militant groups in Muslim-majority states. The United States has depended on partnerships with other states, such as Pakistan, to engage in these military maneuvers. It relies on the doctrine of consent to exonerate its actions, arguing that Pakistani authorities have agreed to its interventions.
I show how the United States has manufactured the conditions for Pakistan\u27s consent. With the IMF, and over the course of several decades, the United States has helped create Pakistan\u27s debt dependency, cultivate a domestic constituency that courts bailouts, and strengthen the military\u27s prominent role in political affairs. The United States has conveniently leveraged these dynamics to secure Pakistan\u27s cooperation in the GWOT.
The rules governing the IMF have helped produce Pakistan\u27s dependence. They allow the IMF to impose lending conditions on states in crisis with no demonstrable benefits and without accountability. Those rules also empower creditor states, like the United States, to use the multilateral institution for their own geopolitical objectives. IMF lending agreements adopt a formalist and statist conception of sovereignty that ignores the distributional consequences of borrowing. As long as a country\u27s representative signs the lending agreement on the dotted line, the debt is owed, and the conditions are binding. Whether the debts incurred by a state benefit a minority or cultivate dependence are not grounds to vitiate loan agreements
This Article suggests that consent, as a safeguard against extraterritorial force, is only as strong as states\u27 ability to avoid economic compulsion. In turn, meaningfully enforcing the prohibition against the use of force, a pillar of our international legal order, may require transforming how international financial institutions, like the IMF, are governed
Afreeist Legal Theory and the Problem of Innocence
Get PDFAfreeism refers to the lack of the assumption that human beings have free will. Rather, it assumes that humans are subject to the same laws of physics, chemistry, biology, etc., that govern all other phenomena. Afreeist Legal Theory in turn is a legal theory that forgoes the assumption of free will. By foregoing the notion of free will, we also forgo notions of desert, blame, and moral responsibility. Human beings are causally or stochastically deterministic beings. As such, they can never do other than what they do. And because they never possess the ability to do otherwise, they are at all times innocent. This leads to the problem of innocence. That is, it is often held that it is unethical intentionally to punish the innocent. Yet, in a deterministic world, whenever we punish, we punish the innocent. Thus, ethically we must either abandon punishment altogether or rethink our ethics. I suggest the latter.
This article seeks 1) to convince the reader that the universe is fundamentally deterministic, that free will is an illusion, that moral responsibility for past actions makes little sense, and that retributive punishment is unjustified and, in its effect, highly problematic, 2) to address the problem of innocence and to develop an alternative ethical understanding that justifies the punishment of innocents, 3) to explore the limitations that we might want to put on the punishment of innocents, and 4) to convince the reader that an understanding of the deterministic nature of the universe, the incoherence of the notion of free will, and the consequent realization that we are all innocents may help us design a better criminal system, one that eschews retribution and vindictiveness, focuses on deterrence and rehabilitation, and takes into account everyone’s welfare - that of the victim, the perpetrator, and society as a whole
Practicing Medicine in the Culture Wars — Gender-Affirming Care and the Battles over Clinician Autonomy
No full textA politically motivated culture war is being waged over the practice of medicine in the United States, and transgender young people are its latest victims.1 Political efforts led to the 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which empowered some states to prohibit abortion even in emergencies and sparked efforts to ban mifepristone. These changes limit physicians’ ability to properly care for patients dealing with serious conditions such as preterm premature rupture of membranes, abruption or hemorrhage, ectopic pregnancy, and miscarriage, undoubtedly worsening this country’s already horrific maternal morbidity and mortality — especially in marginalized racial and ethnic groups. Now, ongoing litigation over bans on gender-affirming care could further establish the authority of politicians and courts to determine patients’ treatment options, while similarly exacerbating health disparities.
Given the high rates of suicide, suicide attempts, and suicidal ideation among transgender young people,2 it is not hyperbole to say that lives are at risk in states pursuing these bans on needed care. The Supreme Court is likely to determine the constitutionality of such bans now that the American Civil Liberties Union has requested the Court’s review. It is imperative, I believe, that the medical, scientific, and public health communities help safeguard against the Court’s indiscriminate acceptance of unsubstantiated, disingenuous claims of medical uncertainty by demonstrating that these restrictions are flawed medically and ethically — and as a result, legally. Otherwise, we risk ever more culture-war legislation that limits clinician autonomy, resulting in harm to patients
Human Rights in Hospitals: an End to Routine Shackling
Get PDFMedical students (NSB, NM, JDW) spearheaded revision of the policy and clinical practice for shackling incarcerated patients at Boston Medical Center (BMC), the largest safety net hospital in New England. In American hospitals, routine shackling of incarcerated patients with metal restraints is widespread—except for perinatal patients—regardless of consciousness, mobility, illness severity, or age. The modified policy includes individualized assessments and allows incarcerated patients to be unshackled if they meet defined criteria. The students also formed the Stop Shackling Patients Coalition (SSP Coalition) of clinicians, public health practitioners, human rights advocates, and community members determined to humanize the inpatient treatment of incarcerated patients. Changes pioneered at BMC led the Mass General Brigham health system to follow suit. The Massachusetts Medical Society adopted a resolution authored by the SSP Coalition, which condemned universal shackling and advocated for use of the least restrictive alternative. This will be presented to the American Medical Association in June 2024. The Coalition led a similar effort to coauthor a policy statement on the issue, which was formally adopted by the American Public Health Association in November 2023. Most importantly, in an unprecedented human rights victory, a BMC patient who was incarcerated, sedated, and intubated was unshackled by correctional officers for the purpose of preserving human dignity
Demand the Impossible: One Lawyer\u27s Pursuit of Equal Justice for All
No full textHow four Supreme Court cases in recent years—all argued and won by one indomitable lawyer—are central to the pursuit of equal justice in America.
Stephen Bright emerged on the scene as a cause lawyer in the early decades of mass incarceration, when inflammatory politics and harsh changes to criminal justice policy were crashing down on the most vulnerable members of society. He dedicated his career to unleashing social change by representing clients that society had long ago discarded, and advocated for all to receive a fair trial.
In Demand the Impossible, Robert L. Tsai traces Bright’s remarkable career to explore the legal ideas that were central to his relentless pursuit of equal justice. For nearly forty years, Bright led the Southern Center for Human Rights, a nonprofit that provided legal aid to incarcerated people and worked to improve conditions within the justice system. He argued four capital cases before the US Supreme Court—and won each one, despite facing an increasingly hostile bench. With each victory, he brought to light how the law itself had become corrupted by the country’s thirst for severe punishment, exposing prosecutorial misconduct, continuing racial inequality, inadequate safeguards for people with intellectual disabilities, and the shameful quality of legal representation for the poor.
Organized around these four major Supreme Court cases, each narrated in vivid and dramatic detail, Tsai’s essential account explores the racism built into the criminal justice system and the incredible advancements one lawyer and his committed allies made for equal rights. An electrifying work of legal history, Demand the Impossible reveals how change can be won in even the most challenging times and how seemingly small victories can go on to have outsized effects.https://scholarship.law.bu.edu/books/1369/thumbnail.jp
The Case for Scientific Jury Experiments
Get PDFFor decades, litigators have relied on focus groups. While this approach can help identify issues for further exploration, attorneys often use focus groups to shape trial strategy or even predict outcomes. But focus groups are ill-suited for these applications because they suffer from three basic weaknesses: 1) they cannot explore unconscious decision-making; 2) they use too few mock jurors to provide reliable answers, and 3) they can become echo chambers that only surface a subset of the issues that an actual jury will consider.
Fortunately, recent technical advances in crowdsourcing and insights into human decision-making have opened the door to a better approach. We can now conduct largescale (i.e., 100’s to 1000’s of mock jurors) A vs. B experiments for trial attorneys. These experiments avoid the problems of focus groups and can be used to test any number of issues. We highlight some examples from our research including: 1) the effects of anchoring, 2) the problem with self-diagnosing bias, 3) how subsequent remedial measures affect juries; and 4) how juries respond to a variety of different jury instructions