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Health Reform Reconstruction
Get PDFThis Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a half-century, a cramped iron triangle ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures - individualism, fiscal fragmentation, privatization, and federalism - that distort and diffuse any reach toward social justice. The profound racial disparities and public health failures of the U.S. pandemic response have agonizingly manifested the limitations of pre-2020 health reform and demand a reconstruction.
Health reform reconstruction begins with a new conceptual framework that aims to realize health justice. Health justice requires commitments to anti-racism, equitable distribution of the burdens and benefits of public investments in health care and public health (for which health care access, quality, and cost are useful, but not exhaustive, metrics), and community empowerment. These commitments put health justice on a collision course with the fixtures of individualism, fiscal fragmentation, privatization, and federalism. Thus, incremental reforms must be measured by the extent to which they confront these fixtures. This Article describes how health reform reconstruction can chart the path for legal change and proposes confrontational incrementalism as a method for recognizing the necessity of reconstructive reform, along with its near impossibility
The Boundaries of Whiteness: From Till to Trayvon
No full textToday, far too many people argue that racism is a thing of the past. As proof of racism’s disappearance, these individuals point to formal equality in the form of laws that prohibit explicit discrimination on the basis of race and that allow for the prosecution of individuals who engage in clearly racially motivated, violent attacks. Additionally, they note that most Americans today would condemn the use of racial slurs, and most would profess a belief in racial equality.
However, as Derrick Bell so wisely taught us, the fact that racism operates in different ways today than it did in the past — the fact that racism is more subtle than it was in the past or the fact that much racial discrimination, in some respects, is more likely to stem from non-conscious, rather than conscious, bias — does not mean racism is not present. It does not mean that racism is not a current and pressing problem in our society today. Indeed, I argue that the same race-based forces and the same racist tropes that worked in the past — a past that we do not and cannot deny was steeped in the ugliest forms of race hatred — are still operating in contemporary society. I do so by taking what many view as an extraordinary case about racial hatred from the 1950s, the Emmett Till murder and trial, and comparing it to the Trayvon Martin killing and trial in 2012 and 2013. In so doing, I show how the stereotypes that undergirded the Till case remain quite ordinary today.
At the same time, I highlight a very subtle difference in the operation of these forces and tropes by showing how the Emmett Till and Trayvon Martin cases reveal a movement from the Jim Crow era of protecting whiteness as property in and of itself to a post–civil rights era of protecting what sociologist Elijah Anderson has called “the white space.” In all, I argue that the Till and Trayvon killings and trials centered on the policing of the boundaries of whiteness
Labor Law: Cases and Materials, 9th ed.
No full textThe Ninth Edition of this widely used casebook maintains the problem-based emphasis of prior editions. Text is taken seriously but always in the full context of the attendant policy issues. The Trump Board’s decisions are addressed, alongside treatment of difficulties that will motivate change in the Biden years.
The coverage of current issues complements the casebook’s comprehensive and nuanced treatment of all the important law on a topic that has become central to contemporary debates about income and wealth divisions in the society. This treatment spans from the protection of concerted employee activity to the organizing process to the bargaining and implementation of collective agreements. It covers other important topics including the preemption of state law and interaction with antitrust and immigration law.
New to the Ninth Edition: Coverage of the most salient and controversial issues posed by developments at the National Labor Relations Board over the past six years, including: The independent contractor distinction, including the emerging “ABC” test The joint employer debate Defining appropriate bargaining units The effects on protected concerted activity of neutral employer personnel rules and the Supreme Court’s endorsement of class action waivers in arbitration The regulation of bargaining during the term of collective agreements Board deferral to arbitration As part of its contemporary focus, the Ninth Edition highlights past and current proposals to amend the National Labor Relations Act (NRLA), including those in the pending Protecting the Right to Organize Act (PRO Act) The new edition’s Statutory Supplement aids discussion by including the PRO Act as passed by the House of Representatives this year and again presents the NLRA with easy to view indications of its evolution, as well as the other major statutes and examples of innovative collective bargaining agreements.
Professors and students will benefit from: A book that consistently poses problems for students and gets deeply into factual issues and important points of law. Careful editing of cases that preserves the decisional antecedents for the court’s action is a hallmark of the book.
Teaching materials Include: Statutory Supplement, with edited versions of innovative collective bargaining agreements.https://scholarship.law.bu.edu/books/1323/thumbnail.jp
Othering Across Borders
Get PDFOur contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering
Response to Bernard E. Harcourt’s “Post- Truth”
No full textIn a brilliant chapter, “Post-Truth,” Bernard Harcourt explores, among other things, whether we are living in a post-truth society and whether the digital age undermines the reliability of evidence for determining the truth. In this commentary, I will humbly add to the conversation he started by looking at how the law and racism—particularly against populations perceived as foreign—contribute to the problem of truth in the twenty-first century. This is not to say that racism is the only or even most important systemic issue to examine at this time. The New Right’s promotion of patriarchy, homophobia, transprejudice, anti-Semitism, Islamophobia, authoritarianism, warmongering, extreme capitalism, environmental destruction, economic inequality, and limited press, as well as dis-regard for public health, are of parallel concern; however, a focus on a single issue is more feasible for this brief commentary
Social Science Research and Reforms of International Institutions
Get PDFBuilding on Daniel Abebe, Adam Chilton and Tom Ginsburg’s call for more social science research in international law, this Essay discusses ways in which social science research can be applied to inform reforms of international institutions. In the face of significant challenges to the current international legal order, active reform discussions have been ongoing concerning a number of international institutions. This Essay posits that in developing proposals to reform these international institutions, more attention should be paid to identify the causes of existing problems, which is important in an international setting where decision-making requires the consensus of multiple stakeholders. The social science approach can be useful in this regard. Using investor-state dispute settlement as an example, this Essay discusses how the social science approach can be applied to help understand the causes of the problem of excessive duration and costs of investor-state arbitration proceedings. Findings from social science research highlight the importance of mechanisms which insulate respondent state decision makers from domestic political pressure. These mechanisms deserve more attention in ongoing ISDS reform discussions
Cop to Cop: Negotiating Privacy and Security in the Examining Room
No full textMedical examination rooms are private places where a physician and patient can participate in a doctor-patient relationship, complete with a reasonable expectation of physical and informational privacy. This is the ordinary rule, and the usual expectation. But in this issue of the Journal of Law, Medicine & Ethics, Gutierrez et al. describe the case of Mr. Doe, illustrating that there is nothing ordinary about Immigration and Customs Enforcement (ICE) or other custodial authority bringing a detainee/prisoner to a private hospital to see a physician.1 In this commentary, we outline the law governing this category of doctor-prisoner encounter, and suggest how correctional officers might be persuaded to stay out of the examining room
Antibiotic Development Incentives That Reflect Societal Value of Antibiotics
No full textTO THE EDITOR—Rome and Kesselheim [1] claimed that rewarding developers of novel antibiotics with transferable exclusivity vouchers is an expensive approach to promoting antibiotic development. This analysis is incomplete as it focuses only on the cost of bringing new antibiotics to market without acknowledging their societal value. The authors also did not suggest an alternative approach. With patients running out of treatment options for resistant infections, failing to strengthen the antibiotic pipeline is not a reasonable option
The Need for a Strong and Stable Federal Public Health Agency Independent from Politicians
Get PDFThe COVID-19 pandemic has revealed the precariousness of federal public health institutions in the United States, and how disastrously things can go when those institutions are undermined by political forces. Such institutions can be disbanded, underfunded, populated with incompetent political hacks, manipulated, or sidelined. As a field, public health in particular needs some political space, given that it requires deep scientific expertise and needs to communicate to the public clearly, reliably, and with authority to engender trust. Key public health agencies, such as the Centers for Disease Control and Prevention (CDC) in particular, should be buttressed against future political encroachment, using legal mechanisms from administrative law, which are tried and true in other domains of governance. Models include the Federal Deposit Insurance Commission (FDIC) (created in 1933), the Federal Reserve System (1913), the Federal Trade Commission (FTC) (1914), and the National Labor Relations Board (NLRB) (1935). Key features of these agencies include having multi-member boards of qualified experts to lead them, enjoying independence from the president (not able to be fired without cause), and having statutory budgetary authority by not requiring congressional appropriation or allowing executive reallocation. We discuss the ways in which independence can increase deference accorded by the courts, as well as the risk that it may reduce political accountability
Predatory Cooperation: Reaction to L. Ahrens, L. Hakelberg & T. Rixen
No full textIn \u27Breaking the shackles of tax competition: How financial transparency enables governments to tax portfolio capital\u27, Ahrens, Hakelberg, and Rixen note that after decades of decline in the capacity of OECD member countries to tax, those rich countries seem finally to have recovered the knack. To date, they have only applied that newfound knowledge to taxing individuals. The authors optimistically conclude that since international cooperation allowed OECD states to gain the upper hand in their fight against tax evasion by individuals, international cooperation could do the same for tax avoidance by corporations