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Can Continuing Legal Education Pass the Test? Empirical Lessons From the Medical World.
Get PDFMandatory continuing legal education (CLE) takes millions of hours and hundreds of millions of dollars from American lawyers every year, with the burden landing in disproportionate fashion on new lawyers, public interest lawyers, and solo practitioners. CLE proponents insist that the system protects the public by maintaining lawyer competence. In the forty-five years since the first jurisdictions began requiring CLE, no evidence has emerged in support of this claim.
This Article argues that mandatory CLE is indefensible in its current state. Either the legal profession and the CLE industry must commit to study and change, or it is time to close the curtains on this failed experiment.
A model for study and change has been laid by CLE’s medical analogue: continuing medical education (CME). CME has come under intense empirical scrutiny for decades and, as a result, has evolved away from the attendance-based didactic rut where CLE still lives. Looking to the CME example, legal scholars can begin down the empirical road to understanding whether and how reformed CLE might, finally, impact real-world changes to legal practice and the client experience. This path may be challenged by powerful institutions with vested interests in the current CLE system, but forty-five years of this unexamined and ineffective requirement is forty-five years too long
Leading Remote Teams
Get PDFIn the spring of 2020, many law libraries suddenly went from physical spaces with books and in-person services to digital and hybrid operations that met users’ needs through a combination of electronic offerings, book pick-up programs, and virtual reference services. Libraries were forced to implement new workflows, technology, resources, and services in a matter of days and weeks versus months and years. Through it all, library leaders were asked to do something that many had little experience with prior to the pandemic—lead a large contingent of remote workers. This article does not focus on new initiatives, resources, or services developed over the past 22 months, such as new digital lending initiatives, the embrace of virtual user services, and the new ways to deliver print materials to library users. Instead, this article focuses on the challenges the author found with leading a large remote team and the successes the author experienced that may provide some best practices for others going forward
Tax Now or Tax Never: Political Optionality and the Case for Current-Assessment Tax Reform
Get PDFThe U.S. income tax is broken. Due to the realization doctrine and taxpayers’ consequent ability to defer taxation of gains, taxpayers can easily minimize or avoid the taxation of investment income, a failure that is amplified many times over when considering the ultra-wealthy. As a result, this small group of taxpayers commands an enormous share of national wealth yet pays paltry taxes relative to the economic income their wealth produces—a predicament that this Article condemns as being economically, politically, and socially harmful.The realization doctrine is widely justified as an accommodation made for administrative convenience. Although there have been numerous proposals for current-assessment reforms that would abandon or limit the realization doctrine—including wealth tax reform proposals, accrual income tax reform proposals, and others—most tax policy scholars and commentators have disfavored these reform proposals in favor of reforms that would retain the realization doctrine in full. There are two primary reasons for this. First, current-assessment reforms face administrative challenges such as those related to asset valuation and liquidity. However, these challenges are surmountable, especially when it comes to reforms targeted at the ultra-wealthy. Indeed, recent scholarly work shows how a wealth tax reform can be designed so as to be superior at valuation as compared to the existing U.S. income tax.This leaves us with the second primary reason for why wealth tax and other current-assessment reform proposals have been disfavored: prior scholarship has generally assumed that the problems created by the realization doctrine can be fixed on the back end by adjusting the rules that govern taxation at the time of realization. Specifically, most tax policy scholars have favored reform proposals—such as retrospective capital gains taxation, progressive consumption taxation, or more incremental reforms—that would retain the realization doctrine, but that would aim to impose taxes in a way that would erase or reduce the financial benefits of deferral.However, this Article argues that these future-assessment approaches ignore a crucial additional problem of deferral—political optionality. If there is a many-year or longer gap between when either income is earned or wealth is accrued and when tax is assessed, then any number of things can happen in the interim to undermine the eventual assessment and collection of tax. This Article explains three sets of pressures that tend to erode future-assessment reforms over time—but that current-assessment reforms are relatively resistant to—(1) policy drift and the need for incremental bolstering of tax reforms, (2) the time value of options, and (3) federal budget rules and related political incentives.As this Article demonstrates, both theory and historical experience reveal that future-assessment reforms are fragile and often fail—and that ultrawealthy taxpayers are well aware of this. In other words, accounting for the implications of political optionality, only current-assessment reforms are likely to succeed at meaningfully taxing the ultra-wealthy and fixing the personal tax system. Hence, we must tax now, or risk taxing never
The Federal Global Migration and Quarantine Network: A Report From the National Academies of Sciences, Engineering, and Medicine
Get PDFThe COVID-19 pandemic thrust the US Centers for Disease Control and Prevention (CDC) Division of Global Migration and Quarantine (DGMQ) into the epicenter of the national response. DGMQ is charged with preventing the importation of infectious diseases at land and sea borders and the spread of those diseases within the US. For more than 50 years, the agency’s comprehensive quarantine system, its regulatory powers, and scientific guidance has placed DGMQ at the forefront of emergency response. CDC requested the National Academies of Sciences, Engineering, and Medicine (NASEM) to assess the performance of the DGMQ during the COVID-19 pandemic, covering 5 key areas: Organizational capacity and financing, disease control, technologies and data systems, collaboration in a federalist system, and Legal Authorities, Powers, and Limits
The End of \u3ci\u3eRoe v Wade\u3c/i\u3e and New Legal Frontiers on the Constitutional Right to Abortion
Get PDFOn June 24, 2002, the US Supreme Court ended the constitutional right to abortion in Dobbs v Jackson Women’s Health Organization. The Court’s majority decision authored by Justice Samuel Alito was substantially the same as a draft opinion leaked a month earlier. The regulation of abortion will now be decided by the states, with about half currently or will soon ban or severely restrict abortion access. In this Viewpoint, we explain the Dobbs ruling and what it means for physicians, public health, and society.
We focus on new legal frontiers in the constitutional right to abortion, including medication abortion and FDA preemption of state bans, restricting travel to states that permit abortions, and access to contraception, miscarriage management, and assisted reproductive technologies such as in vitro fertilization
The Academic Medical-Legal Partnership: Training the Next Generation of Health & Legal Professionals to Work Together to Advance Health Justice
Get PDFAs the national medical-legal partnership (MLP) movement grows, the need for doctors, nurses, social workers, other health professionals, and lawyers who have the knowledge, skills, and experience to collaborate effectively in this holistic healthcare approach is increasing. Given the unique role that institutions of higher education play in training students as they develop their professional identities, members of the Georgetown University Health Justice Alliance sought to build on prior efforts to define the MLP model by focusing on MLPs that exist in academic settings as a specific type of MLP. This report is based on the results of an environmental scan of MLPs that had evidence of engagement with a medical or law school and reflects the core elements of those MLPs as embodied by their objectives, activities, and unique features.
The scan started with prior research conducted by the National Center for Medical-Legal Partnership, which categorized MLPs based on their targeted patient populations and identified eight core elements of infrastructure shared across MLPs. The Health Justice Alliance research team then collected data on the impact of interprofessional MLP learning on core undergraduate and graduate medical education knowledge, attitudes, and skill competencies sets for students. Other reports and articles describing specific MLP programs that create interprofessional education opportunities for law and medical students to learn and practice together also provided foundational background
Obstruction of Journalism
Get PDFIdentifying oneself as press used to be a near-grant of immunity. It meant safer passage through all manner of dangerous terrain. But today, being recognizable as a journalist may be more likely to make one a target.
Physical attacks against journalists in the United States increased nearly 1,300 percent in 2020. The rate of online violence against journalists is also soaring. This violence is aimed almost entirely at women, people of color, non-Christians, and non-straight journalists. It silences voices already relegated to the edges. Rather than letting our national conversation branch, the violence attempts to shear it to a white, male, Christian, and straight trunk.
At its core, democracy requires that new voices can be heard so that stock stories—and the hierarchies they support—do not become entrenched. Journalists tell us these new stories about ourselves and our communities—stories that bring us into conversation with one another and help us to self-govern. Given this, violence against journalists is an assault on freedom of expression and democracy itself. And it is continuing with impunity.
To address the systemic harm caused by the violence, this Article proposes a federal “obstruction of journalism” statute modeled on the obstruction of justice ones. Obstruction of justice is aimed at preserving the effective functioning of our justice system by criminalizing threats against that system. Likewise, obstruction of journalism would criminalize physical violence and particularly severe threats against reporters with the aim of protecting journalism, another system integral to a functioning democracy
The Common Law as Statutory Backdrop
Get PDFAmidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and undertheorized in the statutory interpretation literature.
This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses the common law to determine statutory meaning, based on a study of 602 statutory cases decided during the Roberts Court’s first fourteen and a half Terms. The Article catalogs five different justifications the Court regularly provides for consulting the common law, as well as three different methods the Court uses to reason from the common law to statutory meaning. The Article also notes several problems with the Court’s current use of the common law to determine statutory meaning. For example, the Court has provided no criteria indicating when the common law is relevant to an interpretive inquiry, leading to inconsistencies in the Court’s use of the common law even with respect to the same statute. Moreover, the Court’s reliance on the common law — an arcane, sophisticated set of legal rules inaccessible to the average citizen — is in tension with modern textualism’s focus on the meaning that a statutory term would have in everyday conversation. In addition, there are democratic accountability problems inherent in the use of potentially antiquated doctrines created by unelected, elite judges to determine the meaning of modern statutes enacted by a legislature representing a diverse electorate.
In the end, the Article recommends that the Court limit its use of the common law to situations in which congressional drafting practices or rule of law concerns justify the practice — for example, where Congress itself has made clear that it intended for the relevant statute to incorporate the common law, where the statutory word or phrase at issue is a legal “term of art” with a clearly established common law meaning, or where courts have long construed the statute in light of the common law, so that it can be considered a “common law statute.
Statutory Interpretation from the Outside
Get PDFHow should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional canons “ordinary meaning” actually supports.
This Essay’s theory and empirical study carry several further implications. First, linguistic canons are not a closed set. We discovered possible new canons that are not yet reflected as legal canons, including a “nonbinary gender canon” and a “quantifier domain restriction canon.” Second, we suggest a new understanding of the ordinary meaning doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Third, many of the canons reflect that ordinary people interpret rules with an intuitive anti-literalism. This anti-literalism finding challenges textualist assumptions about ordinary meaning. Most broadly, we hope this Essay initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actually understand legal rules. We see our experiments as a first step in that new direction
A New Architecture for Global Health Emergency Preparedness and Response—The Imperative of Equity
Get PDFEven before COVID-19 emerged in Wuhan, China, in December 2019, the prevailing global narrative was inequity—in health, income, race, and socioeconomic status. COVID-19 amplified all these inequities. Early in the pandemic, low-income countries were left without key medical resources, such as diagnostic tests, personal protective equipment, and ventilators. By 2021, inequitable vaccine distribution captured global attention and outrage. This year, high-income countries have bought the lion’s share of Paxlovid, a highly effective antiviral treatment. Vaccine inequities remain with only 16% of people in low-income countries having received at least 1 vaccine dose vs 80% of people across high-income countries. This article provides a roadmap to a new global health architecture with health equity at the center