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Addressing Stigma and False Beliefs About Mental Health: A New Direction for Mental Health Parity Advocacy
Get PDFDespite laws designed to protect mental health and substance use parity in the United States, real parity remains an aspiration. Under the current system, insurance companies use multiple tactics to deny coverage for or delay the provision of mental health and substance use disorder (MH/SUD) treatment. The difficulty of enforcing parity creates a barrier to achieving the goal of accessible behavioral health services. Rather than a continued effort to legislate our way out of this conundrum, it may be useful to look further upstream. Critical impediments to achieving such parity include the basic attitudes and beliefs about mental and behavioral health that underlie the current stagnation in enforcement efforts. A small body of research suggests that a lack of belief in the effectiveness of MH/SUD treatment and negative feelings about people with MH/SUD are correlated with lower support for mental health parity. While more research is needed to fully understand this connection, researchers, advocates, and policymakers should consider using anti-stigma campaigning as a new advocacy tool in the fight for mental health parity.
In Part I, this article examines the parity problem in the United States. Despite recent legislative efforts, the apparent failure to achieve equity suggests that additional statutes are unlikely to propel this country toward parity. Part II examines stigma and false beliefs as an underexplored barrier to parity, further demonstrating the limitations of a regulatory approach. Instead, emerging research illustrates that misunderstandings of mental health and substance use disorders will continue to impede progress toward parity if unaddressed. Finally, Part III looks upstream and suggests anti-stigma work as a necessary intervention to succeed in accomplishing the goals of previous legislative parity efforts
Demonstrating Tension Between State And Federal Power In Medicaid: The Price Of Georgia’s Waiver Fight
No full textJust days before the end of President Donald Trump’s term, the Secretary of the Department of Health and Human Services (hhs) approved the “Georgia Pathways” waiver proposal, which would extend Medicaid coverage to people earning up to 100 percent of the federal poverty level provided they pay premiums and fulfill work requirements. Georgia contends that the waiver for this demonstration project would provide Medicaid coverage to those not currently eligible. But, the waiver does not fulfill the terms of the Affordable Care Act (ACA) Medicaid expansion, and by imposing eligibility restrictions not permitted by federal law, the waiver would reach only a small subset of people who would be eligible if Georgia implemented Medicaid expansion according to the ACA. Also, other beneficiaries could be disenrolled due to the waiver’s new requirements. The Biden administration revoked approval for the work and premium requirements before Georgia’s implementation began but after providing the state of Georgia with an opportunity to show that the plan would promote the purposes of Medicaid. Georgia responded by suing HHS. In challenging the Secretary’s authority to grant and oversee waivers of federal law, Georgia has made novel arguments that seek to narrow federal authority and significantly expand state power within federal spending programs
JD-next: A Randomized Experiment of an Online Scalable Program to Prepare Diverse Students for Law School
Get PDFAs one of two companion papers, this article explains our efforts to create and evaluate a program called JD-Next, which exposed students to legal education, prepared them to succeed, and assessed their ability to do so. JD-Next is a fully online, noncredit, seven-and-a-half-week course to train potential JD students in case reading and analysis skills before their first year of law school. This article focuses on rigorously testing the exposure and preparation functions of this program in 2019 to determine whether participation in such a course can improve law school confidence and performance of matriculating students. In the companion article, we test whether the exam at the end of the JD-Next course is a valid and reliable predictor of law school performance.
We recruited a national sample of potential JD students, enriched for racial/ ethnic diversity so that less than half of the students identified as White non-Hispanic, and randomized them to the course or an active placebo control group (where participants watched legal television shows). We also recruited a sample of volunteers at one university who self-selected into the course and who were matched to non-participants, using university archival data.
We found that participating in the JD-Next course is associated with substantial improvement in grades for the targeted iL course (Contracts) and overall first semester iL GPA. We also report substantial student confidence gains and satisfaction with the course, in qualitative and quantitative terms, based on a survey at three points in time (pre-course, post-course, and post-semester). In a companion article, we report on the validity and reliability of the JD-Next exam for use in law school admissions.\u27
As background, we first review the literature around underrepresentation in JD programs and the role of bridge programs to help address the problem. We then lay out our methods in Part II, including both the program design and the research approach. We share our results in Part III, identify strengths and limitations of the study in Part IV, and discuss the implications in Part V. An appendix provides methodological details
Retelling Copyright: The Contributions of the Restatement of Copyright Law
Get PDFThis Article was written for a special issue on the American Law Institute’s (ALI) Restatement of Copyright Law.Since the American Law Institute (ALI) launched in the early twentieth century, its mission has been “the clarification and simplification of the law and its better adaptation to social needs ... [and] to secure the better administration of justice.” A principal way it has pursued that mission has been through its Restatements of Law project. By their nature, Restatements of Law reflect tensions between what it means to “restate” and reform the law. As the ALI has grown and the legal profession has evolved with social and political changes, the organization has ensured professionalism and the incorporation of diverse views to manage this tension at the heart of its Restatement projects.Against this backdrop, the ALI announced in 2014 that it would begin a Restatement of Copyright Law project in 2015 and we, as copyright lawyers and scholars, applaud that decision. The ALI specified that the project will focus on the generally applicable parts of copyright law, including the subject matter of copyright; the scope of the exclusive rights granted by copyright; copyright ‘formalities’; the rules governing ownership and transfer of copyrights; the duration of copyright; the standard for copyright infringement; rules regarding the circumvention of copyright protection systems; defenses to copyright infringement, including the first sale limitation and fair use; and remedies, including actual and statutory damages, attorney[’s] fees, preliminary and permanent injunctive relief; and criminal penalties. Since this announcement, the Restatement of Copyright Law project has been a lightning rod for controversy. The Authors Guild, the Association of American Publishers, the Motion Picture Association of America, the Recording Industry Association of America, and fourteen other organizations wrote a letter to the ALI expressing the worry that “the conception of the project and the recent appointment of its Reporter indicate a significant risk that it would be used as a vehicle not to restate the law of copyright, but, rather, to rewrite it to benefit a particular viewpoint in the copyright debate.” The Acting Register of Copyrights wrote to the ALI that the Restatement project is “misguided” and that “[t]he need for the Restatement is unclear, as an extensive body of positive copyright law already exists.” The Copyright & Literary Property Committee of the New York City Bar Association prepared a report against the project on the basis that “rather than simply clarifying or restating that law, the draft offers commentary and interpretations beyond the current state of the law that appear intended to shape current and future copyright policy.” The head of the National Music Publishers’ Association called the project a “sham attempt to undermine hard fought principles of understood law” and urged that “[t]his thinly-veiled attempt to subvert the law and undermine creators . . . must be stopped.” And just last year, five members of Congress criticized the project, noting that “laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement because the law is clearly articulated by Congress in both the statute and the legislative history.” They elaborated that “any Restatement or other treatise relied on by courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern.” Furthermore, they asserted that “[c]ourts should rely on that statutory text and legislative history, not Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.”Some have expressed skepticism that these critiques are honest, instead suspecting that they are a smoke screen for critics’ fears that a Restatement of Copyright Law would provide an understanding of copyright law that would undermine the ability of content creators and others to shape the law in their favor. Whatever the truth, for purposes of this Article, we accept the critics at their word. And we think their criticisms of the Restatement of Copyright Law project are exaggerated and mistaken. As we contend, the act of restating in the manner that is the ALI’s signature form is consistent with the practice of law generally, which inevitably involves acts of legal exposition and interpretation. It is not inherently partisan but a professional practice in which all lawyers are taught to engage. Stating the law, saying what it means, and then applying it in a particular context are what lawyers and judges do all the time. In this way, restating—or “retelling”—the law is both normal and inevitable. A restatement of law is another way of saying what the law is.To be sure, copyright law is grounded in a federal statute, while the more common ALI Restatements of the Law, such as the Restatements of Contracts and Torts, are based in common law. These previous Restatements helped guide interstate practice and coordinate legal development across the fifty states. The 1976 Copyright Act, the principal federal statute governing copyright law, may be a single federal statute for the whole nation, but its development over forty years by courts in thirteen separate circuits through thousands upon thousands of cases has not always been uniform or crystal clear. The 1976 Copyright Act both draws on longstanding common law elucidated by federal courts and uses language indicating Congress intended for courts to continue expounding the common law in essential ways. Moreover, as Congress intimated when it enacted the 1976 Act, it was enacting a copyright statute for the ages. In four decades, Congress has not returned to revise the central aspects of the law to which the ALI Restatement of Copyright Law now turns its attention. This confirms that it was intended for long-range judicial interpretation subject to complex and diverse doctrinal evolution. For these reasons, we should welcome a carefully crafted Restatement of Copyright Law to help courts and lawyers ascertain the central rules of copyright law as they have evolved over the past forty years.The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership. This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright. In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward. They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI
Beyond the Made in America Tax Plan : GILTI and International Tax Cooperation\u27s next Golden Age
Get PDFTumultuous times can be particularly difficult for the vulnerable. That may be no less true in the international tax context than it is elsewhere, but disruptive change can also open the door to greater participation by, and rewards for, those long treated as outsiders. With international tax cooperation\u27s first golden age receding into history, new priorities have begun to take root. Unprecedented challenges buffet the international tax regime, suggesting that its future may depend less on its capacity to shield businesses from taxation than on its ability to find common ground among very different states.
International tax cooperation has long held a potent appeal even for states with outsized influence and power.\u27 Resting on a patchwork quilt of mismatched national tax systems, international tax rules have drawn strength from states\u27 willingness to make generous concessions to one another. When an investment or a business spans a border, two sovereigns could assert competing tax claims on the resulting profits.2 Surprisingly often, they have not. Precisely the reverse can be true, with states treating the right to tax like a hot potato.
In the wake of the Great Recession that followed the 2008 financial crisis, the once-robust neoliberal consensus that sustained that cooperative approach began to fray.5 The reciprocal deference to the claims of other states that once delighted scholars and served as a boon to international commerce has come to seem anachronistic.\u27 As the enormous subsidies it delivers to multinationals have come into focus, the call for shared sacrifice to produce collective benefits through economic growth ring increasingly hollow.
International tax cooperation\u27s longstanding success came because of--not despite-its lofty aspirations. The question of why states obey international law can be a puzzle. Legitimacy-and the compliance pull it exerts over states-offers one answer that explains the perseverance of the international tax regime.8 Simply put, influential states harnessed legal instruments with sterling pedigrees to contain a compelling threat to the world\u27s collective welfare. 9 Fueled by the legitimacy generated by states\u27 formal embrace of its pursuit of collective benefits, international tax cooperation grew strong.
Over the last two decades, shared sacrifice has yielded to centralized authority.10 The dawn of a new golden age of international tax cooperation will require more, a higher purpose worthy of the vast shared undertaking it represents. One path forward would be to shape international tax rules to deliver benefits principally to the least well-off states. Such an approach Tax Sparing 2.0-would revive a proud history of mission-driven international tax cooperation, helping to restore its lost legitimacy
The Future of Facts: The Politics of Public Health and Medicine in Abortion Law
Get PDFWhile a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries make decisions between competing sets of public health and medical claims and second, courts legitimate one set of these assertions over the other. Distributional consequences flow from their decisions, not only for the parties but also for others who are represented in the case before the court and those who will bargain in the shadow of the decision.
For this Symposium issue on the Future of Critical Legal Theory, I argue that it is necessary for legal scholars, lawyers, and activists to understand the relationship between how courts adjudicate public health and medical claims (or scientific evidence more broadly) and how this relates to the distribution of material goods and services. This Essay is a call for a deeper interrogation about the production of knowledge, one common in the social science and humanities[3] but less common in legal scholarship.[4] The call for a deeper interrogation is not simply a question of theory. A critical relationship to the production of knowledge—a position that used to be commonplace among progressives, especially gender and race activists—reflected a deep awareness that how knowledge is made is central to how resources are distributed.[5] I argue that we should return to this place of skepticism in order to bring about greater equality in access to public health services.
In this Essay, I will use abortion jurisprudence as an example to show how facts are made and legitimated through the court adjudication process and how this process increases and decreases access to abortion services. This challenges the assumption that courts are simple arbitrators of fact. Rather, courts are involved in tipping the scales toward what we begin to think of as a truth by legitimating claims, including those that are considered deeply contentious. Finally, I turn to the question of how politically conflicting groups on the issue of abortion—progressives and conservatives—position themselves vis-à-vis the production of knowledge and how this relates to the distribution of material resources
The Intersectional Race and Gender Effects of the Pandemic in Legal Academia
Get PDFJust as the COVID-19 pandemic helped to expose the inequities that already existed between students at every level of education based on race and socioeconomic class status, it has exposed existing inequities among faculty based on gender and the intersection of gender and race. The legal academy has been no exception to this reality. The widespread loss of childcare and the closing of both public and private primary and secondary schools have disproportionately harmed women law faculty, who are more likely than their male peers to work a “second shift” in terms of childcare and household responsibilities. Similarly, women law faculty were more likely to feel the effects of the financial exigencies that universities and law schools faced during the pandemic because of their disproportionate representation in non-secure, meaning non-tenure-stream, faculty positions. Furthermore, the rapid switch to remote teaching and learning, particularly during spring 2020, had a more detrimental effect on women in part because of the persistent gender bias that women law faculty, who teach a larger percentage of required and survey courses, encounter in student teaching evaluations and in part because women tend to be more engaged in the mental health and emotional caretaking of students, which significantly increased during the pandemic. Even the actions that law schools took during the pandemic to provide relief to faculty, such as automatic extensions to the tenure clock for all faculty, place women more at risk than men for harmful impacts on factors like pay equity. In all, this Essay briefly analyzes how factors such as limited childcare, remote learning, the greater caretaking needs of students, plus other pandemic-related effects, have worked to exacerbate previously existing gender and intersectional gender and race inequities between men and all women in legal academia and between white men and women of color
Review of The Injustices of Rape: How Activists Responded to Sexual Violence, 1950–1980 by Catherine O. Jacquet
No full textTwo familiar histories inform Catherine O. Jacquet’s The Injustices of Rape, which analyzes campaigns for the reform of rape law between 1950 and 1980. The first is the story of the civil rights movement’s attack on the use of rape law to target black men with legal (and, of course, extralegal) violence. In this story, the law of rape was a key tool by which the legal system reinforced racial hierarchy. Roughly coincident with this story was that of the feminist movement’s attack on rape as a reinforcer of gender hierarchy and on the legal system’s complicity in that crime through the structure of rape doctrine and the failures of police, prosecutors, and courts to enforce the law. Jacquet deepens and reorients these two familiar stories by viewing them together through the lens of intersectionality
Second Panel Discussion - Symposium: Who Makes ESG? Understanding Stakeholders in the ESG Debate
Get PDFThis symposium was hosted virtually by Fordham University School of Law on October 23, 2020. The transcript has been edited for clarity and to provide sources, references, and explanatory materials for certain statements made by the speakers.
The second panel discussion was on the topic of Stakeholders as the driving force of ESG. Panelists for the second panel were Carmen Lu, Lisa Fairfax, and David Webber
Deep Tracks: Album Cuts that Help Define The Essential Scalia
Get PDFJeff Sutton and Ed Whelan have collected some of Justice Scalia’s “greatest hits” in a volume entitled The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. The book is an excellent introduction to the jurisprudential thought and literary style of one of the most influential legal thinkers—and legal writers—in modern times. As with any “greatest hits” compilation, however, there are inevitably going to be key “album cuts” for which there will not be space. This essay seeks to supplement Sutton and Whelan’s invaluable efforts by surveying three of those “deep tracks” that shed particular light on Justice Scalia’s contributions to legal thought. The first opinion, a lone concurring opinion in NLRB v. Int’l Brotherhood of/= / \u3eElectrical Workers Local 340, dates from Justice Scalia’s first term on the Court and illuminates his interpretative methodology, his jurisprudential focus, and his unique take on precedent. The second opinion, Zuni Public School Dist. No. 89 v. Dep’t of Education, is a dissent by Justice Scalia that may exemplify his approach to statutory interpretation better than any other decision, if only by way of contrast between his approach and that of other justices. The third opinion, Melendez-Diaz v. Massachusetts, starkly pitted Justice Scalia against a phalanx of conventionally labeled “conservative” justices (aligned with Justice Breyer) on one of the most impactful constitutional questions to reach the Supreme Court in recent decades. It sharply highlights the key, and oft overlooked, ambiguity regarding what it means to be a conservative jurist and a constitutionalist jurist. Collectively, these opinions show how, in order to understand some of the most important currents in modern law, one needs the essential Scalia – and The Essential Scalia