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Martyrdom and Criminal Defense
Get PDFAccording to research on the emotional well-being of lawyers, public defenders may be among the happiest. This comports with my own anecdotal experience as a teacher and mentor of law students and post-graduate fellows interested in criminal defense, many of whom are now career defenders. They may be deeply frustrated by the system in which they work, but they are happy to do what they can to make a difference for their clients. They also adore their defender colleagues. My former students and fellows in large law firms don’t seem quite as happy.
Notwithstanding the data, there seems to be a trend in the direction of suffering. In this Essay, I first call out this damaging trend and discuss what is problematic about the martyr paradigm and its equally troubling analogue, the hero/savior paradigm. Then, I muse a bit about whether there might be a need for heroes and martyrs in the challenging work of criminal defense after all. Finally, I offer a happier, more satisfying, and more effective approach to being a defender
Legal Needs and Health Outcomes for People with Cancer in Medical-Legal Partnership Programs: A Systematic Review
Get PDFMedical-legal partnerships (MLPs) integrate lawyers into the medical team to address patients’ unmet legal needs that create barriers to good health and well-being (i.e., “health-harming legal needs”) and improve health outcomes. Given the growing popularity of MLP as an innovative healthcare model, this review has two objectives: to identify peer-reviewed literature measuring (1) cancer patients’ legal needs, and (2) outcomes for cancer patients after receiving MLP legal services. A systematic literature search was conducted in concordance with the Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRISMA) for the period 2006- 2022. Four articles met the inclusion criteria for objective one: three articles, including one that also met the inclusion criteria for objective one, met the inclusion criteria for objective two, for a total of six articles. Literature confirms that when screened, cancer patients regularly struggle with health-harming legal needs. Further published research is needed to better identify and understand the unmet legal needs of cancer patients and the impact of MLPs on cancer patients’ outcomes
The Constitution as a Source of Remedial Law
Get PDFIn Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law claims as well as federal claims. Treating Article III as a source of remedial law would thus conflict with more recent decisions that have become canonical, including Erie Railroad v. Tompkins. Nonetheless, the evidence that Gallogly has amassed in support of the proposed default rule retains substantial current-day relevance. The challenge is to translate the Founders’ understanding to our current, very different legal universe. This Response defends a constitutional default rule on remedies, and a concomitant judicial power to develop such remedies, that is (a) binding on state as well as federal courts, and (b) applicable to remedies at law as well as remedies in equity, but (c) applicable only to claims based on federal law. As applied to equitable remedies, Gallogly’s constitutional default rule is largely consistent with the status quo. If extended to legal remedies, however, recognition of a constitutional default rule, and a concomitant judicial law-making power, would require a significant, and much needed, rethinking of the Court’s current approach
Defragging Feminist Cyberlaw
Get PDFIn 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which alternately amplifies and abridges the feminist values of consent, safety, and accessibility. Cyberlaw simply hasn’t been understood that way—until now.
In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how feminist values shape cyberspace and the laws that govern it. Consent impacts copyright law and fair use, the Digital Millennium Copyright Act (DMCA), criminal laws, and free speech. Each of those laws is informed by the invasive act of sharing nonconsensual intimate imagery, better known as “revenge porn.” Two other laws, the Americans with Disabilities Act (ADA) and the recent amendments to Communications Decency Act (CDA) § 230, are crucial to promoting web accessibility for all people, including disabled people and sex workers. And safety influences privacy law and the Computer Fraud and Abuse Act, which affect the rights of pregnant people and targets of online harassment. This Article concludes that feminist cyberlaw is a new term, but feminism has always been foundational to making sense of cyberlaw
When the Digital Services Act Goes Global
Get PDFThe European Union’s Digital Services Act (“DSA”) establishes a “meta law”—public regulation of the private regulation conducted by internet platforms. The DSA offers an attempt to balance private technological power with democratic oversight. The DSA will likely prove an attractive model for other governments to assert control over massive global internet platforms. What happens when other countries borrow its approach, in an instantiation of the vaunted Brussels Effect? This Article evaluates the DSA using the “Putin Test”—asking what if an authoritarian leader were given the powers granted by the DSA? The Article argues that authoritarians might well exploit various mechanisms in the DSA to enlarge their control over the dissemination of information, and, in particular, to target the speech of critics
Abolition and Environmental Justice
Get PDFDuring the coronavirus pandemic, movements for penal abolition and racial justice achieved dramatic growth and increased visibility. While much public discussion of abolition has centered on the call to divest from criminal law enforcement, contemporary abolitionists also understand public safety in terms of building new life-sustaining institutions and collective structures that improve human well-being, linking penal divestment to environmental justice. In urging a reimagination of public safety, abolitionists envision much more than decriminalization or a reallocation of police functions to social service agencies or other alternatives to imprisonment and policing. Instead, for abolitionists, meaningful public safety requires, among other things, a just transition away from an extractive fossil fuel driven economy characterized by vast racialized inequality and held in place by penal bureaucracy, and towards new regenerative economic, social, and ecological systems. This Article explores the connections between abolition and environmental justice, examining social movement organizing, litigation, and proposed legislation. These abolitionist environmental justice projects aim both to confront the harms associated with criminal law enforcement and ecological catastrophe and to build a more sustainable and just future. These efforts represent a necessary turn towards addressing multiple interlocking crises together rather than treating the harms involved in criminal law enforcement, climate change, and racial capitalism as separate and distinct. This Article attends carefully to and attempts to think with abolitionist and environmental justice movement participants, engaging the ideas and strategies generated by these movements as sources of insight into law’s injustice and possible abolitionist futures
Advancing Equity In The Pandemic Treaty
Get PDFThere is a broad consensus around equity’s importance. Even countries that hoarded supplies during the acute phase of COVID-19 seem to understand that the international community must find a means to ensure fairer allocation of medical resources when the next health crisis hits. But there has been little agreement about the concrete steps needed to operationalize fairer access and benefit sharing. That is, what are the workable mechanisms that could reduce the divide between richer and poorer populations? The World Health Assembly, the governing body of the World Health Organization, has appointed an Intergovernmental Negotiating Body to develop a pandemic convention, agreement, or other instrument under the WHO constitution. The February 2023 draft is designed “to achieve greater equity … through the fullest national and international cooperation.” It is important that the negotiators develop specific, measurable metrics that directly impact equity. The mechanisms and metrics agreed upon should allow the public to evaluate whether a more equitable system is emerging through this new regime. Equity won’t just happen. We need to plan and prepare for equity, and we need international norms with which nations must comply to achieve the fairness we strive for
Privacy and/or Trade
Get PDFInternational privacy and trade law developed together, but now are engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power trade today.The promise of a global internet, with access for all, including companies from the Global South, is increasingly remote. This Article uncovers the forgotten and fateful history of the international regulation of privacy and trade that led to our current crisis and evaluates possible solutions to the current conflict. It proposes a Global Agreement on Privacy enforced within the trade order, but with external data privacy experts developing the treaty’s substantive norms
Critical Perspectives to Advance Educational Equity and Health Justice
Get PDFA robust body of research supports the centrality of K-12 education to health and well-being. Critical perspectives, particularly Critical Race Theory (CRT) and Dis/ability Critical Race Studies (DisCrit), can deepen and widen health justice’s exploration of how and why a range of educational inequities drive health disparities. The CRT approaches of counternarrative storytelling, race consciousness, intersectionality, and praxis can help scholars, researchers, policymakers, and advocates understand the disparate negative health impacts of education law and policy on students of color, students with disabilities, and those with intersecting identities. Critical perspectives focus upon and strengthen the necessary exploration of how structural racism, ableism, and other systemic barriers manifest in education and drive health disparities so that these barriers can be removed
Medical-Legal Partnership as a Model for Access to Justice
Get PDFThe United States is plagued with a “justice gap” that leaves many Americans with unmet civil legal needs. Americans with low income do not receive the legal help they require for as many as 92% of their substantive civil legal problems. The justice gap requires many legal aid agencies to triage, becoming “emergency rooms” for clients with unmet legal needs. This national crisis calls for new innovations so that access to justice (A2J) can function more like primary care, promoting better use of resources and preventing legal crises that can cause long-lasting harm.
Medical-Legal Partnerships (MLPs) embed lawyers in healthcare teams to address health-harming civil legal needs facing low-income patients. MLPs are community-based, integrating low-barrier legal services into healthcare settings and bringing free and accessible legal services right to the people who need them in familiar places. MLPs work interdisciplinarily, training nonlawyer partners to understand and screen for legal issues; provide legal information, resources, and referrals; and advocate around problems that are often intertwined with health and well-being. Moreover, MLPs operate preventively, providing A2J in advance of a legal crisis, and facilitate structural change through a “patients-to-policy” approach. MLP scholarship has uncovered the power of lawyers to address health-harming legal needs and identified A2J as a social determinant of health.
Research shows the benefits of MLPs, including patient stress reduction, health improvements, and return on investment for hospitals and healthcare systems. The MLP literature argues for expansion of the MLP model as a healthcare innovation. Some scholars have focused on the lessons from the MLP movement for legal and medical education. For example, I have argued alongside co-authors that MLPs provide maxims for law school clinics to pursue health justice. As both a framework for health law scholarship and a movement, health justice focuses on the potential for law to dismantle subordination as a root cause of health inequities. Health justice builds the power of individuals and communities affected by health disparities “to create and sustain conditions that support health and justice.” Therefore, health justice is not just healthcare justice; it is also economic justice, racial justice, housing justice, and other forms of justice that necessitate access to legal resources to address unmet legal needs that drive health inequity.
MLPs have been promoted as a unique and promising innovation in healthcare and health justice. This essay argues that they also represent an important innovation in A2J because they offer a model that is community-integrated, preventive, interdisciplinary, and transformative. MLPs embody principles that should drive broader A2J innovation to address our country’s justice gap