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The Distinctiveness of Appellate Adjudication
Get PDFThis paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation; entangled legal concepts facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. In the paper itself, I demonstrate more fully what it is for a legal concept to be an entangled one and how entanglement supplies guidance in adjudication. I also broach how entanglement in legal concepts and engineered entanglement have significance for legal pedagogy; appellate adjudication; the respective roles of the judiciary, the legislature, and administrative agencies; the erosion of the distinction between so-called public law and so-called private law; and our understanding of the fact/value distinction.
Understanding more specifically the nature of the entanglement at work in appellate adjudication requires much closer scrutiny of appellate opinions than we usually give. I examine carefully the background to MacPherson v. Buick and Justice Benjamin Cardozo’s particular re-engineering of ‘negligence’ and ‘duty,’ entangled concepts belonging to the same legal taxonomy. Via this scrutiny, I demonstrate the flaws in the engineering of some concepts in the buildup to MacPherson, and how these flaws led to those concepts’ collapse and ultimately to Cardozo’s re-engineering of ‘negligence’ and ‘duty.’ I also explain why careful understanding of the engineering of entangled legal concepts can make us appreciate that even the most successful of such concepts have within in them the grounds for their own obsolescence.
To show that conceptual engineering of entangled concepts occurs outside the context of state common law, I also examine how the U.S. Supreme Court has engineered ‘commerce’, itself an entangled concept. The recent decision regarding the individual mandate in the Affordable Care Act makes this example particularly timely. This secondary example also clarifies the nature of entanglement and engineering it.
This article concerns appellate adjudication in any area of law. I maintain that whether we are dealing with private law or public law, common law or statutory law or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and the constraints judges work with when they work with legal concepts that entangle fact and value
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
\u3ci\u3eFisher v. Grutter\u3c/i\u3e
Get PDFThere is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by personnel changes. The author predicts that the Court will invalidate the Texas plan in a narrow opinion that leaves open the theoretical possibility of some future affirmative action plans surviving constitutional scrutiny. But ironically—as a proponent of racial justice—she hopes that any decision to invalidate the Texas plan expressly overrules Grutter and articulates the Court’s apparent preference for shutting the door on affirmative action completely, rather than disingenuously allowing the light of false hope to seep through a crack in the doorway. If the Supreme Court closes the door, the political process can react directly to the Court’s racial ideology, rather than continuing to be distracted by the Court’s coquettish conception of racial equality. With any luck, this will put the future of affirmative action back in the hands of the political branches—which, of course, is where it belonged to begin with
Lessons from Social Psychology for Complex Operations
Get PDFThis short essay looks at several social forces that powerfully affect human behavior, often trumping individual “character,” personality, knowledge, and even deeply held moral beliefs. Specifically, this essay looks briefly at issues of obedience, conformity, and group polarization, discussing the ways in which they can affect and distort individual behavior. Ultimately, this essay suggests, understanding these dynamics can have important implications for how we think about counterinsurgency and stability operations
Strange Bedfellows: The Convergence of Sovereignty-Limiting Doctrines in Counterterrorist and Human Rights Discourse
Get PDFIt is hard to imagine two groups with less in common than national security hawks and human rights activists. They represent different cultures with different views on the use of force, the role of rights, and the constraining power of international law. Yet despite their differences, the two groups seem to be converging on an understanding of state sovereignty as limited and subject to de facto waiver—an understanding that appears to legitimize military interventions even in the absence of state consent and Security Council authorization.
This convergence is reached via different routes in each community: for the national security community, counter terrorism provides the sovereignty-limiting logic, while for the human rights and humanitarian law communities, it is the prevention of atrocities that leads to sovereignty-limiting doctrines.
In this essay, the author traces how this convergence has come about in two very different discourse communities, and points out some of the unintended consequences and unresolved problems that result
The U.S. Criminal-Immigration Convergence and its Possible Undoing
Get PDFThe intensifying convergence of U.S. criminal law and immigration law poses fundamental structural problems. This convergence--which manifests in the criminal prosecution of immigration law violators, in deportation of criminal law violators, and in a growing immigration enforcement and detention apparatus--distorts criminal law incentives and drains enforcement resources, misguides immigration regulation, and undermines efforts to implement alternative immigration regulatory frameworks. This article offers an account, informed by social psychological and literary theory, of why this convergence persists notwithstanding these problems, as well as how the convergence (and inherently associated problems) might be undone. The U.S. criminal-immigration convergence holds powerful sway, despite the fact that it does much harm and relatively little good, because it serves to relieve pervasive cognitive dissonance in the United States regarding immigration, specifically in relation to economic and racial concerns. Drawing on previously unexamined Immigration and Customs Enforcement memoranda, legislative history, and empirical studies of criminal-immigration enforcement, this article critically engages the primary justifications of the convergence in immigration scholarship and policy discourse. Finally, it assesses two approaches to undoing the convergence
Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age
Get PDFFederal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to novel questions of law and policy. These technologies constitute what can be termed Remote Biometric Identification (“RBI”). That is, they give the government the ability to ascertain the identity (1) of multiple people, (2) at a distance, (3) in public space, (4) absent notice and consent, and (5) in a continuous and on-going manner. RBI fundamentally differs from what can be understood as Immediate Biometric Identification (“IBI”)--i.e., the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. IBI, in contrast, tends to be focused (1) on a single individual, (2) close-up, (3) in relation either to custodial detention or in the context of a specific physical area related to government activity, (4) in a manner often involving notice and often consent, and (5) is a one-time or limited occurrence. The types of legal and policy questions raised by RBI significantly differ from those accompanying IBI. In the absence of a statutory framework, we are driven to Constitutional considerations, where the Court’s jurisprudence proves inadequate as a way of addressing the concerns that present in the realm of RBI. The Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech and assembly; and the Fifth and Fourteenth Amendments’ due process protections fail to account for the way in which such measures fundamentally challenge the current norms. The article calls for Congressional action and a judicial framing commensurate with the threat posed by these new and emerging technologies
The Tragedy of the Carrots: Economics & Politics in the Choice of Price Instruments
Get PDFExternalities are one of the most fundamental market-failure justifications for government action, and pigouvian taxes and subsidies are standard tools for correcting them. Even so, neither the legal nor economic literatures offer any comprehensive account of when policy makers should prefer one to the other. This Article takes up that task. Prior efforts to distinguish between “carrots” and “sticks” have generally been limited to the context of pollution regulation, and I show here that even those are incomplete. I also extend the analysis to the case of positive externalities, where there is no prior literature to speak of. Overall I find that sticks are usually superior to carrots, but that there are some interesting exceptions.
Nonetheless, carrots are rampant in modern lawmaking, especially carrots in the form of tax expenditures. I identify features of modern politics and law that contribute to the current inefficient over-production of carrots. Among others, I find that federalism contributes to political preferences for carrots. That implies an until-now unrecognized reason to centralize certain forms of government regulation.
Finally, I take issue with the claims of the environmental literature that carrots, even if the inferior policy choice, should be used when politics would be likely otherwise to frustrate any regulation. Using carrots in critical and closely-contested situations only contributes to externality producers’ incentives to raise the political stakes, by either cranking out more negative externalities or withholding benefits
Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population\u27s Wellbeing
Get PDFThe Patient Protection and Affordable Care Act is a major achievement in improving access to health care services. However, evidence indicates that the nation could achieve greater improvements in health outcomes, at a lower cost, by shifting its focus to public health. By focusing nearly exclusively on health care, policy makers have chronically starved public health of adequate and stable funding and political support. The lack of support for public health is exacerbated by the fact that health care and public health are generally conceptualized, organized, and funded as two separate systems. In order to maximize gains in health status and to spend scarce health resources most effectively, health care and public health should be treated as two interactive parts of a single, unified health system.
The core purpose of health reform ought to be the improvement of the population’s health. We propose five criteria that would significantly advance this goal: prevention and wellness, human resources, a strong and sustainable health infrastructure, robust performance measurement, and reduction of health disparities. Although the Patient Protection and Affordable Care Act includes provisions addressing these criteria, population health is not a central focus of the reform.
In order to guide health reform implementation and to inform future health reform efforts, we offer three major policy reforms: changing the environment to incentivize healthy behavioral choices, strengthening the public health infrastructure at the state and local levels, and developing a health-in-all policies strategy that would engage multiple agencies in improving health incomes. Adopting these reforms would facilitate integration and dramatically improve the population’s health, particularly when compared to the health gains likely to be realized from a continued focus on access to health care services