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Confronting the Wizard of Oz: National Security, Expertise, and Secrecy
Get PDFAziz Rana’s account of the takeover of American national security by experts, and of the public’s acceptance of that state of affairs, offers an important and novel perspective on what ails us in national security today. In this Comment, I suggest that while Rana is correct to identify our deference to experts as a central aspect of the problem, the problem is more complicated. First, the phenomenon of elite control over foreign and security policy questions is not new, but likely dates back to the founding—when elites ruled not based on expertise but on the basis of status, class, and legal barriers to more popular input. Second, deference to expertise is not just an ideological assumption of the modern age, but is also a rational response to greater threats and increased complexity. Third, deference may rest as much on secrecy as it does on epistemological assumptions about national security information. Because of classification, the general public often lacks not just expertise, but the very facts necessary to make an informed assessment.
Rana’s reminder of the importance of popular decision-making on national security policy is an important one. Unwarranted deference to experts (especially when they make judgments on secret information) not only undermines democratic legitimacy, but may induce poor decision-making, by facilitating groupthink and other biases. And most importantly, decisions about national security are never only about national security; they nearly always implicate other values, such as privacy, liberty, or human dignity. The national security experts have no expertise in assessing the normative questions that conflicts with these values raise. Those normative questions must be made by us all
\u3ci\u3eJudulang v. Holder\u3c/i\u3e and the Future of 212(c) Relief
Get PDFOn December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, a case addressing the Board of Immigration Appeals’ use of the comparable grounds approach for determining eligibility for relief under former section 212(c) of the Immigration and Nationality Act. The Court held that this approach was arbitrary and capricious under the Administrative Procedure Act, and remanded for the agency to determine a new way for determining the eligibility of deportable aliens for 212(c) relief. The purpose of this article is to place the Court’s decision in its proper historical context and to chart the paths forward that are open to the agency in light of the Court’s flawed holding. Contrary to the rhetoric of the decision, as well as numerous commentators, the fundamental issue in Judulang arose because of the agency’s determination to extend relief to a class of aliens, those charged with deportability, who were not covered by the clear language of section 212(c). The flaws inherent in the comparable grounds approach thus must be seen in this light, not through the alternative narrative whereby Judulang is the product of a restrictive and arbitrary approach to deporting resident aliens. As well as clarifying what Judulang is about and how it arose, this article goes beyond the Court’s holding and assesses the theories on which the agency could base its ultimate policy for affording deportable aliens an opportunity to apply for 212(c) relief. Although there are several options open to the agency post-Judulang, this article concludes that the most rational path forward would extend 212(c) eligibility to deportable aliens if the conduct undergirding the charge of deportability would have also exposed the alien to inadmissibility. This approach, implicitly sanctioned by the Supreme Court in Judulang, would represent the best chance for keeping 212(c) cases out of the Supreme Court and giving 212(c) relief, repealed in 1996, the belated burial it deserves
Pillars for Progress on the Right to Health: Harnessing the Potential of Human Rights Through a Framework Convention on Global Health
Get PDFEver more constitutions incorporate the right to health, courts continue to expand their right to health jurisprudence, and communities and civil society increasingly turn to the right to health in their advocacy. Yet the right remains far from being realized. Even with steady progress on numerous fronts of global health, vast inequities at the global and national levels persist, and are responsible for millions of deaths annually. We propose a four-part approach to accelerating progress towards fulfilling the right to health: 1) national legal and policy reform, incorporating right to health obligations and principles including equity, participation, and accountability in designing, implementing, and monitoring the health sector, as well as an all-of-government approach in advancing the public\u27s health; 2) litigation, using creative legal strategies, enhanced training, and promotion of progressive judgments to increase courts\u27 effectiveness in advancing the right to health; 3) civil society and community engagement, empowering communities to understand and claim this right and building the capacity of right to health organizations; and 4) innovative global governance for health, strengthening World Health Organization leadership on health and human rights, further clarifying the international right to health, ensuring sustained and scalable development assistance, and conforming other international legal regimes (e.g., trade, intellectual property, and finance) to health and human rights norms. We offer specific steps to advance each of these areas, including how a new global health treaty, a Framework Convention on Global Health, could help construct these four pillars
Poverty in America: Why Can\u27t We End It?
Get PDFThe lowest percentage in poverty since we started counting was 11.1 percent in 1973. The rate climbed as high as 15.2 percent in 1983. In 2000, after a spurt of prosperity, it went back down to 11.3 percent, and yet 15 million more people are poor today.
At the same time, we have done a lot that works. From Social Security to food stamps to the earned-income tax credit and on and on, we have enacted programs that now keep 40 million people out of poverty. Poverty would be nearly double what it is now without these measures, according to the Center on Budget and Policy Priorities.
With all of that, why have we not achieved more? Four reasons: An astonishing number of people work at low-wage jobs. Plus, many more households are headed now by a single parent, making it difficult for them to earn a living income from the jobs that are typically available. The near disappearance of cash assistance for low-income mothers and children—i.e., welfare—in much of the country plays a contributing role, too. And persistent issues of race and gender mean higher poverty among minorities and families headed by single mothers
Book Review of The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy
Get PDFThe last decade has seen a quiet but steady expansion of interest in using socioeconomic diversity in schools to improve educational outcomes. Ten years ago, only a few school districts around the country used formal strategies to integrate their schools along class lines. Today, over eighty school districts around the United States, together educating around four million students, ensure that poor children are taught alongside middle-class and wealthier children through a variety of voluntary integration programs. The message of The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, the important new book edited by Richard Kahlenberg, is simple: these strategies are more educationally effective than other reform strategies; they are more cost effective; and recognizing these facts has important implications for a number of pressing law-reform choices at the federal, state, and local levels
Misplaced Fidelity
Get PDFThis paper is a review essay of W. Bradley Wendel\u27s Lawyers and Fidelity to Law, part of a symposium on Wendel\u27s book. Parts I and II aim to situate Wendel\u27s book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel\u27s argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence in the midst of moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of the problem of role morality. In part III I note the similarity between Wendel\u27s view and that of legal process theorists, and I argue that the view involves too much complacency about the American legal system. Part IV examines the central metaphor of Wendel\u27s book, fidelity to law. I distinguish between two forms of fidelity, personal and interpretive. The former is a relation between persons, while the latter means mimetic accuracy in interpretation, translation, performance of music, portraiture, or other forms of representation. I agree with Wendel\u27s views on the requirement that lawyers exhibit interpretive fidelity toward law, but not personal fidelity. I argue that law is not the kind of thing toward which one can have personal fidelity; rather, the fidelity must be toward other members of the community rather than toward norms as such; and in cases where the law systematically discriminates, or is otherwise systematically unjust, the bonds of reciprocity grounding such a relation are absent, and the kind of unconditional obedience to law that Wendel supports is unjustified. Part V asks where, on Wendel’s view, the morality went. I argue that Wendel\u27s view, which derives from but modifies Joseph Raz\u27s analysis of legal authority as exclusionary reasons, does not succeed—either it begs the question of whether law actually provides exclusionary reasons or, if (as Wendel suggests) the reasons are not wholly exclusionary, Raz’s two levels of reasoning collapse into one, and acting on moral grounds is not in fact excluded by legal authority. I then turn to Wendel\u27s ideas about moral remainders —the moral costs that acting on his view of legal ethics may inflict on others. Wendel suggests that some form of atonement can cancel the moral remainder, but I am skeptical that his proposal—atoning through law reform activities—can do the job
Cadbury Twenty Years On
Get PDFThis year marks the twentieth anniversary of the publication of the Cadbury Report, one of the most significant events in modern corporate governance. The Cadbury Report, and its simple two page \u27best practices\u27, triggered a global debate on corporate governance. \u27Cadbury\u27 codes of corporate governance spread like wildfire. The legacy of the Cadbury Report lives on in the UK with no diminution in the appeal of its voluntary code/comply or explain approach to corporate governance. But there are several clouds looming on the horizon. Comply or explain and voluntary codes of corporate governance appear to have run their course elsewhere in the world. Even in the UK, legislative initiatives on the corporate governance front, either domestically initiated or EU-driven, may be sapping the voluntary code of its vitality. Although the conviction remains strong in the UK that the flexibility and opportunity for easy, rapid adjustments are strengths of the voluntary code approach to corporate governance, the constantly evolving nature of the UK voluntary codes may, in fact, be an indication of a deep-rooted problem. Are these voluntary codes of corporate governance, which give so much deference to industry sentiment and conventional wisdom, in a constant state of flux because they are not getting it right
Significant Entanglements: A Framework for the Civil Consequences of Criminal Convictions
Get PDFA significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The phenomenon of civil consequences of conviction presents an overlap of civil and criminal law that poses difficult questions about how the theory behind this overlap translates to practical application.
Padilla v. Kentucky, heralded by some as a watershed and treated by others as an anomaly, is a first step in matching the law to the practical reality of the civil consequences of criminal convictions. This article examines Padilla and the context in which it was decided and suggests that, although the dissenters in Padilla may be correct that the opinion will be difficult to apply in a coherent way, the decision has taken the first step towards a new legal doctrine of civil consequences. The Supreme Court’s recent decision in Turner v. Rogers underscores that the Court’s approach in these two cases creates an opportunity to consider this overlap of civil and criminal law and to create a more realistic, consistent, and just doctrine of civil consequences of criminal convictions.
This article begins the process of defining this doctrine by suggesting that instead of inquiring into whether consequences are direct or collateral as courts have in the past, courts should inquire into whether these civil consequences are “significant entanglements” of civil and criminal law. First, courts should analyze whether the civil consequence is significant, in both an objective and subjective sense. Second, courts should examine whether the consequence is entangled with the criminal process. Where significant entanglements exist, corresponding protections should follow. The article goes on to suggest that the significant entanglement framework can be used to analyze whether Sixth Amendment protections should apply to a particular civil consequence at a particular stage of the criminal process. Further, the significant entanglement framework can be applied outside the Sixth Amendment context to understand the other constitutional protections that may be applied by courts as a result of civil consequences of criminal convictions. Thus, the significant entanglement framework is the next step in developing a new doctrine for the protections that apply to civil consequences of criminal convictions and for understanding this particular intersection of civil and criminal law
Are Prosecutors Born or Made?
Get PDFIn more than thirty years of criminal law practice--from public defender in Philadelphia to professor running a criminal law clinic in New York, Boston, and DC--the author has had countless encounters with prosecutors and countless conversations. Early in her career, the encounters and conversations were noteworthy--something to rail about back at the office, or to dine out on with friends. Soon enough they became commonplace, not even worthy of mention, just the way things were. But the author felt it important to pick a few examples and talk about them
The Borrower\u27s Tale: A History of Poor Debtors in \u3ci\u3eLochner\u3c/i\u3e Era New York City
Get PDFThis study adds to the recent scholarship on Progressivism in practice—fine-grained, place-based studies of reform at the local level—but focuses closely on the relationships among reformers, industry, and the law that an earlier generation of historians studied at the national level and outlined in broad brushstrokes. This study also builds upon the creditor-centered work of historians such as Mark H. Haller and John V. Alviti, but moves beyond their reliance upon distinctions and categories, such as those separating profit making credit providers from philanthropic credit providers, which were less important to borrowers than they have been for historians. In focusing primarily on the lived experience of poor borrowers, this article imports into the study of household credit relationships an approach mapped out by several historians of social welfare policy and institutions, who have attempted to reorient the institution-centered historiography of social welfare to give greater weight to the perspectives of welfare recipients. This study attempts to correct a similar imbalance in the historiography of household credit relationships.
The value of viewing the history of credit through the lived experiences of working-class households is not solely in documenting the human dignity and agency of poor borrowers, although this is certainly one of the goals of this study. Rather, by looking at credit relationships from the borrower’s point of view, a number of different institutions, groups, and policies that borrowers experienced as simultaneous and overlapping, but that historians have usually studied separately from one another, are brought into the same analytic frame. Thus, in contrast to prior work, this study treats charitable and for-profit lenders to the poor together as participants in the same market for working-class credit. The debtors’ stories presented here show how impoverished families organized their financial lives, made ends meet, and employed borrowing as a survival strategy