Hauptman-Woodward Medical Research Institute
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Rules, Standards, and Such
Get PDFThis Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.
A clearer distinction would be useful in formulating and applying the law. For the law-applier, it would be more useful if expressly focused on whether the law-giver was trying to pin things down and thus narrow the room for discretion. For the law-giver, it would be more useful if it had helped to think about how to pin things down.
This better top-level distinction divides binary from scalar directives. If the directive comprises a checklist of one or more yes/no conditions, then it is a binary directive. If instead the directive calls for consideration of multivalent factors, it is a scalar directive. First, binary/scalar is a superior distinction for analysis because it is a clean distinction. Second, it is a telling distinction that represents a significant difference between the components that compose the law. Third, it tells the law-applier much about whether the law-giver tried to pin things down. Fourth, it conveys a better sense of the tools at hand for the law-giver’s pinning down the law-applier, and thus enables the tools’ deployment in an optimal way. Fifth, it allows the drawing of meaningful subdivisions that bring to the fore the choices in shaping that law: for example, one such subtype of scalar directives is a true balancing test, which explicitly or implicitly presents an exhaustive listing of quantifiable and commensurable considerations to be scaled and weighed against one another—and so offers a route to retrieving some control in the application of any scalar directive.
Parenthetically, a running example to illustrate the superiority of binary/scalar comes from injunctive relief. The test for a temporary restraining order was the supposedly binary condition of “irreparable harm,” but it has disintegrated in practice to the prevailing test for a preliminary injunction. The diversity among the tests for preliminary injunctions reveals the essential struggle between the necessary flexibility for infinitely variable situations and the need for appropriately corralling the judges’ discretion. From ancient roots of unrestrained discretion, the test for a preliminary injunction has evolved in recent decades from a sequential test of four supposedly binary conditions to the indefiniteness of a sliding-scale approach that balances the so-called four factors, back to a hopeless stab at crispness in the form of the alternatives test that tries to state alternative combinations of situational facts warranting provisional relief. The best test emerges as a systematized form of scalar directive—a true balancing test—that asks if the expected costs of a potentially wrongful denial exceed the expected costs of a potentially wrongful grant of a preliminary injunction. The inadequacy of the current rule/standard distinction for this analysis reveals itself in the fact that it would probably categorize all the competing preliminary injunction tests as “standards.”
In the end, this Article does not propose casting rule/standard aside as a way of evocatively classifying decisional law. Instead, it proposes adopting binary/scalar as the way technically to define rules and standards: a rule appears as a yes/no checklist, and a standard involves a subjective or multidimensional scalar measurement
Waverly Duck and Anne Rawls discuss their new book, Tacit Racism
Get PDFEpisode 10 features co-authors Waverly Duck, Distinguished Visiting Scholar, 2020-21, Center for Diversity Innovation, University at Buffalo, and Anne Rawls, Professor of Sociology at Bentley University. They discuss their new book, Tacit Racism (University of Chicago Press, 2020). Their research focuses on understanding how centuries of institutional racism have shaped interactions between white people and Black Americans into patterns of implicit bias and tacit racism
Not the African Copyright Pirate is Perverse, But the Situation in which (S)He Lives—Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization From Below in IP Law
Get PDFPrinted textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in learners\u27 native tongues. Digital content, for many reasons, does not prove a wondrous solution. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute essential elements of the right to education under international human rights law. Intellectual property (IP) law has so far refrained from endorsing the concept of extraterritorial state obligations (ETOs) under international human rights law (IHRL), that is, of states, in appropriate circumstances, bearing human rights obligations toward those living beyond their own territory. This reluctance is regrettable if it is borne in mind that most IP, including copyright law originates at the international level, where each state plays a role in designing rules that may affect the lives of those in other countries. ETOs could assume a key function in civilizing -as it were, constitutionalizing -IP law. This Article will demonstrate the significance of ETOs for IP law by focusing on the issue of how the right to education under IHRL prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a constitutionalization of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research
Sexual Lynching
Get PDFDifferent groups of people experience rape in different ways. Empirical evidence confirms that women fear rape considerably more than men, that incarcerated males fear being sexually assaulted more than non-incarcerated males, and that transgender individuals are more fearful of being raped than cisgender individuals. In the case of women, fear of rape often conditions many decisions females make, including what to wear, where to go, and how much to drink. In the prison context, fear of rape leads many men to adopt overly aggressive behaviors as a way of safeguarding against being raped. Genderqueer people often follow a series of freedom-constraining rules in certain social settings in order to avoid being sexually assaulted. The behavior modification that fear of rape brings about in these historically discriminated groups is a harm in itself that is distinct from the individual harm that any particular instance of rape causes. In recognition of the unique harms that rape visits upon these groups, this Article argues that we ought to describe the rape of these individuals as a sexual type of lynching that serves to perpetuate domination of these historically marginalized groups. By formally recognizing that rape harms these groups of people in a special way, the label of sexual lynching serves as both an expression of solidarity with these vulnerable communities and a rejection of the patriarchal norms that create a false equality between the diverse ways in which rape is experienced by different groups
Time-In-Cell 2019: A Snapshot of Restrictive Housing Based on a Nationwide Survey of U.S. Prison Systems
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Justice Ginsburg Recounts a Living History: U.S. Supreme Court Justice Ruth Bader Ginsburg shares insight into her pioneering path to our nation\u27s highest court
Get PDFIrus Braverman discusses medical posthumanities
Get PDFEpisode 2 of the podcast features UB School of Law professor Irus Braverman discussing her upcoming workshop, Medical Posthumanities: Governing Health Beyond the Human. Braverman\u27s work explores holistic approaches to health that include scientific, natural science discussions between ecologists and virologists that also takes into consideration social and cultural understandings and also legal norms
Jessica Castner, “Nurse-Initiated Protocols in Emergency Departments”
Get PDFEpisode 9 of The Baldy Center Podcast features Jessica Castner, a board-certified emergency nurse and an emergency nurse scientist. In 2014 she received a research grant from The Baldy Center, entitled, Complaint-Specific Protocols: Layers of Regulation and Emergency Nurse Scope of Practice. In this podcast Castner discusses her current research and recent publication on nurse-initiated protocols in emergency departments, and offers perspective on policy and protocol impacts on pandemic emergency room care in hospitals
