3320 research outputs found
Sort by
Libertarian Patriarchalism: Nudges, Procedural Roadblocks, and Reproductive Choice
Get PDFCass Sunstein and Richard Thaler\u27s proposal that social and legal institutions should steer individuals toward some options and away from others-a stance they dub libertarian paternalism -has provoked much high-level discussion in both academic and policy settings. Sunstein and Thaler believe that steering, or nudging, individuals is easier to justify than the bans or mandates that traditional paternalism involves.
This Article considers the connection between libertarian paternalism and the regulation of reproductive choice. I first discuss the use of nudges to discourage women from exercising their right to choose an abortion, or from becoming or remaining pregnant. I then argue that reproductive choice cases illustrate the limitations of libertarian paternalism. Where choices are politicized or intimate, as reproductive choices often are, nudges become not much easier to justify than traditional mandates or prohibitions. Even beyond the context of reproductive choice, it is not obvious how much easier nudges are to justify than bans or mandates.
Part I of this Article briefly introduces Sunstein and Thaler\u27s libertarian paternalism. Part II then turns to the context of reproductive choice. Part II.A reviews restrictions on the right to choose an abortion-particularly post-Casey regulations such as waiting periods, requirements that women receive certain types of information, and requirements that women undergo ultrasound-that pitch themselves as steering choice without entirely closing off the right to choose an abortion. This distinction between nudges and prohibitions echoes Sunstein and Thaler\u27s proposals, but works to subordinate women\u27s choices to the judgment of (often male) experts and administrators-hence my term libertarian patriarchalism. Part II.B reviews efforts to nudge women-particularly teenagers, HIV-positive
women, and others thought to be unsuitable mothers-to avoid pregnancy.
Part III considers the normative implications of nudging reproductive decisions. In Part III.A, I argue that the political nature of reproductive choices presents a problem for nudges. I do so by considering a parallel with voting rights. Empirical research shows that voters are more likely to choose the candidate listed first on the ballot. Yet we do not empower the administrator in charge of ballot design to choose a default rule that nudges individuals toward the candidate he sincerely believes would promote choosers\u27 welfare. Given the political nature of reproductive choices, a policymaker\u27s attempting to nudge reproductive decisionmaking in the direction he prefers-or indeed in any direction-fails to show adequate respect for the chooser\u27s agency. In Part III.B, I offer an argument that targets the use of nudges in the context of pregnancy. Finally, in Part III.C, I argue that nudges do not merely add choices to an existing menu, but change the substantive choices available to individuals and thereby impose more-than-trivial costs on them. I conclude by exploring the implications of my arguments for nudges more generally
A Possible Solution to the Problem of Diminishing Tribal Sovereignty
Get PDFThe capacity of Indian tribal sovereignty to protect tribes from outside encroachment and interference has steadily diminished from when the concept was first enunciated in the nineteenth century in the Marshall Indian Law Trilogy. This article assumes as a working premise that only bringing tribes into the Constitution as co-equal sovereigns will end the attrition. The article examines how this might happen, either through creative interpretation of existing constitutional text or by amending the Constitution. Each of these proposals is examined to see if it empowers tribes to manage their futures more effectively, is capacious enough to include the vast majority of tribes, maintains the union’s security and stability, and has political salience. The article concludes that only the creation of a virtual nationwide election district for all members of a tribe to elect tribal representatives to Congress will meet these criteria. The author concedes that the approach is novel, but hopes it is sufficiently viable to warrant further consideration by others
Global Health and the Law
Get PDFThe last two decades have brought revolutionary changes in global health, driven by popular concern over AIDS, novel influenzas, and maternal mortality. Given the rapid globalization that is a defining feature of today’s world, the need for a robust system of global health law has never been greater. Global health law has been defined as the legal norms, processes, and institutions designed primarily to attain the highest possible standard of physical and mental health for the world’s population. Global health law is not an organized legal system, with a unified treaty monitoring body, such as the World Trade Organization. There is, however, a network of treaties and “soft” law instruments that powerfully affect global health—many of which arise under the auspices of the World Health Organization. See Lawrence O. Gostin, Global Health Law (Harvard University Press, 2014).
The WHO is the most important institution for negotiating international health agreements. Despite WHO’s normative powers, modern international health law is remarkably thin, with only two major treaties adopted since the agency’s creation, the Framework Convention on Tobacco Control and the International Health Regulations. Despite the potential of “soft” and “hard” instruments to set norms and mobilize multiple actors, global health law-making has major limitations: states are loath to constrain themselves and, therefore, often reject international law or agree only to weak norms; high-income states are reluctant to finance capacity building in lower-income states or provide un-earmarked funding to WHO; and compliance mechanisms are often weak or non-existent. However, global health law, despite its limitations, remains vital to achieving global health with justice
Analogical Legal Reasoning: Theory and Evidence
Get PDFThe paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts
Governing for Health as the World Grows Older: Healthy Lifespans in Aging Societies
Get PDFSo much of global health governance focuses intensely on a brief moment in the human lifespan—from a safe birth to infant and child survival. Yet, with all the attention to this early window of life (infancy to age five), the opposite end of the life spectrum is comparatively neglected. The Millennium Development Goals (MDGs) do not mention a healthy lifespan or a healthy old age. This inadequate attention to the older years of the life appears to be a glaring omission given the universal challenges posed by aging societies. Aging is a demographic fact in almost all countries, but it is occurring more rapidly in low- and middle-income countries. Today, almost two in three people aged 60 or over live in developing countries. By 2050, nearly four in five of those aged over 60 will live in the developing world.
Across the globe, declining fertility rates, lower infant mortality, and greater longevity drive population aging: people live longer because of improved nutrition, sanitation, health care, education and economic wellbeing. In many respects, therefore, global aging is a triumph of social and economic development. But sitting alongside the stunning success of longer lives (and the future prospect of still longer lives), are the personal, social, and economic consequences of a global demographic transition to a decidedly older population. A fundamental dynamic for global health in the coming decades is to find innovative governance tools to shape the way the international community can enhance the well-being of older people living in aging societies—from civil society, philanthropy, industry, and governments to international agencies and global public-private partnerships. Reflecting on the journey from the new millennium to today, there has been undeniable—although decidedly inadequate—progress. The 2002 Madrid International Plan of Action on Aging (“Madrid Plan”) framed aging policies as integral aspects of economic development and human rights—a form of mainstreaming we support. Yet, more than a decade later, the United Nations processes have failed to yield concrete changes in law and governance.
The goal of healthy aging is unmistakable, and benefits everyone equally in society. Society should afford all human beings the opportunity to live dignified and long lives where they are healthy and active for as long as possible, allowing them to continue to enrich their own lives and that of those around them. The challenge of global aging is significant and universal. Almost 700 million people are now over the age of 60, and by 2050, 2 billion people—over 20 percent of the world’s population—will be 60 or older. Recognizing the need to combat this population shift, Anna Garsia and Professor Gostin look at the impact this changing dynamic will have on global health and the structures currently in place. In this Article, Garsia and Gostin analyze the current state of affairs for older persons around the world, looking at both international and domestic efforts and ultimately calling for a course of action that enhances the application of existing human rights law while campaigning for a robust new international treaty on the treatment of elder individuals
Virus Sharing, Genetic Sequencing, and Global Health Security
Get PDFThe WHO’s Pandemic Influenza Preparedness (PIP) Framework was a milestone global agreement designed to promote the international sharing of biological samples to develop vaccines, while that ensuring poorer countries would have access to those vaccines. Since the PIP Framework was negotiated, scientists have developed the capacity to use genetic sequencing data (GSD) to develop synthetic viruses rapidly for product development of life-saving technologies in a time-sensitive global emergency—threatening to unravel the Framework. Access to GSD may also have major implications for biosecurity, biosafety, and intellectual property (IP).
By rendering the physical transfer of viruses antiquated, GSD may also undermine the effectiveness of the PIP Framework itself, with disproportionate impacts on poorer countries. We examine the changes that need to be made to the PIP Framework to address the growing likelihood that GSD might be shared instead of physical virus samples. We also propose that the international community harness this opportunity to expand the scope of the PIP Framework beyond only influenza viruses with pandemic potential.
In light of non-influenza pandemic threats such as the Middle East Respiratory Syndrome (MERS) and Ebola, we call for an international agreement on the sharing of the benefits of research – such as vaccines and treatments – for other infectious diseases to ensure not only a more secure and healthy world, but also a more just world, for humanity
On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit, Brief of Law Professors as Amici Curiae in Support of Respondent, Gregory P. Warger, v. Randy D. Shauers
Get PDFPetitioner asks this Court to interpret Fed. R. Evid. 606(b) as permitting statements made by jurors during deliberations to be admitted to support a motion for a new trial. The practical consequences of petitioner’s rule would be significant and problematic, not only fundamentally altering the purpose and practice of voir dire, but also providing a new, fact driven, basis for post-trial motions. These expanded proceedings would place substantial additional burdens of courts, lawyers and jurors alike. In light of existing mechanisms to ensure juror honesty and impartiality, petitioner’s rule would disrupt a well-functioning system for little to no benefit
The Judicial Duty to Scrutinize Legislation
Get PDFThe Declaration of Independence famously declared, “[w]e hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.” It then affirmed “[t]hat to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” This last sentence has proven to be problematic.
If “consent of the governed” means the consent of a majority of “We the people,” then the “consent of the governed” can be used to violate the unalienable rights for which “Governments are instituted among Men.” The situation is still worse if the consent of a majority of a small body of men and women called “legislators” and “representatives” is taken to be the same as the consent of the people themselves. The problem with the prevailing “collective” conception of popular sovereignty is that it invites this majoritarian interpretation of the “consent of the governed.” How else is the “will” of “We the people” to be identified
Regulatory Monopoly and Differential Pricing in the Market for Patents
Get PDFPatents are limited-term monopolies awarded to inventors to incentivize innovation. But there is another monopoly that has been largely overlooked at the heart of patent law: the monopoly of the U.S. Patent and Trademark Office (PTO) over the granting of patents. This Article addresses this topic by developing the notion of a regulatory monopoly, where a single governmental actor has the power to set prices in a regulatory area.
The Article explains how regulatory monopolists like the PTO could enhance social welfare via differential pricing-by charging regulated entities differing fees based on their willingness and ability to pay. In particular, the Article shows how the PTO could increase its revenues and promote innovation by charging different patent \u27 prices for inventions in different industries. Such pricing could also be used to tailor effective patent term across industries, an emergent goal for many patent scholars.
The Article then applies the author\u27s recent empirical research to generate potential differential patent price structures. This research takes advantage of a natural experiment-a change in patent term rules due to enactment of the TRIPS agreement in 1994-to measure the relative importance of patent protection across different industries. The Article concludes by discussing how recent patent reform (the America Invents Act of 2011) provides a legal basis for the PTO to conduct differential pricing
The IRS Under Siege
Get PDFThis is Chapter 1 of Confidence Games (MIT, 2014).
Confidence Games provides an account of the wave of tax shelters that occurred at the turn of the twenty-first century. During this period, some of America’s most prominent law and accounting firms created and marketed products that enabled the very rich—including newly minted dot-com millionaires—to avoid paying their share of taxes by claiming benefits not recognized by law. These abusive tax shelters bore names like BOSS, BLIPS, and COBRA and were developed by such prestigious firms as KPMG, Ernst & Young, BDO Seidman, the now defunct Jenkens & Gilchrist and Brown & Wood, now merged into Sidley Austin. These shelters brought in hundreds of millions of dollars in fees from clients and deprived the U.S. Treasury of billions in revenue before the IRS and Justice Department stepped in with civil penalties and criminal prosecutions targeting the professionals and firms involved. As we suggest, the decade of tax shelter activity between the mid-1990s and mid-2000s is the most serious episode of professional misconduct in the history of the American bar.
Chapter 1, available here, describes how an overstretched and under-resourced IRS came under attack in the late 1990’s by anti-tax and anti-government members of Congress. In the chapters that follow, we describe the heightened competition for professional services, the relaxation of tax practitioner norms against aggressive advice, and the creation of complex financial instruments that made abusive shelters harder to detect. By 2004, the tax shelter boom was over, leaving failed firms, disgraced professionals, and prison sentences in its wake. A central theme that we explore in the book is the role of organizational forces in abetting wrongdoing. In the conclusion, we assess the regulatory responses that ultimately put an end to this wave of shelters. We also consider strategies and approaches that might serve to strengthen professional norms governing tax advice.
The rise and fall of the tax shelter industry offers a cautionary tale that we believe remains highly relevant today, as lawyers and accountants continue to face intense competitive pressure and regulators continue to struggle to keep pace with accelerating financial risk and innovation