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At Long Last, WHO Member States Agree to Fix Its Financing Problem
Get PDFThose who deeply care about improving the health and well-being of all people no matter their personal circumstances have long argued that sustainably financing the World Health Organization is a cornerstone imperative—and for good reason. WHO is the only institution with the mandate and legitimacy to sit at the center of the global health architecture and bring together all stakeholders to coordinate and execute all-of-humanity approaches. Now after decades of inaction, WHO\u27s member states have agreed to substantially improve the agency’s financing model, giving it greater flexibility and enhanced capacity to fulfill its mandate as the world’s health champion. What must happen now given the new commitment of capital will be critical to sustaining the momentum
ESG & Anti-Black Racism
Get PDFThis essay discusses contemporary federal, financial intermediary, and company efforts to navigate racial inequality, placing those efforts in the context of ESG—environmental, social, and governance—initiatives. While ESG tools and metrics have tended to focus on a firm’s external and internal impacts on the environment, human rights, and labor standards, in recent years, firms have targeted ESG efforts at racial equity primarily through internal diversity, equity, and inclusion (DEI) initiatives and customer-facing corporate philanthropy. This essay proposes an ESG racial equity goal, discusses how federal regulations of corporate DEI programs and policies fail to meet this goal, and highlights how racial equity standards being set by other power brokers, namely stock exchanges, indices, and institutional investors. I then discuss an emerging and important ESG tool: the racial equity audit. “Race audits” were first proposed in 2011 in the context of municipalities seeking to map the specific impacts of racial disadvantage within a jurisdiction. The focus of the audit is to track laws, policies, and procedures that contribute to racial disparities within the municipality or, in the context of ESG, within a company. Racial equity audits were the topic of numerous shareholder proposals during the 2021 proxy season. While no racial equity audit shareholder proposals were successful in 2021, they—and the entire ESG movement—continue to be bolstered by institutional investors eager to tackle systemic racism and reluctant corporate managers facing embarrassing and newsworthy racially-charged incidents in their offices and storefronts. This essay concludes with my own recommendation to improve ESG efforts to combat racial inequality: the U.S. Securities Exchange Commission (SEC) should step into the role of regulator of ESG accounting and auditing firms to oversee and regulate the quality, ethics, integrity, and independence of ESG audits, including racial equity audits
Brief of Michelle M. Wu as Amicus Curiae
Get PDFCopyright is, above all else, a balancing act. This equity principle is especially important when technology collides with traditional copyright. Market effects are certainly an important feature of that balance but must be weighed against other equitable interests, regardless of their technological form. Literary criticism, second-hand sales, and library lending all have the potential to impact sales but nevertheless are considered social goods that copyright is intended to foster.
Controlled digital lending ( CDL ) was established to innovate these core, well-established components of copyright law, allowing libraries to secure their collections and maintain their relevance as physical stewards of knowledge in an increasingly digital age. CDL takes many forms. Many libraries around the United States offer works through CDL subject to their own individual platforms and practices. The arguments offered by Plaintiffs in support of their motion for summary judgment are a broad-based attack on all of them, shoehorning the very concept of CDL into a dispute about the Internet Archive’s individual implementation of it. See, e.g., ECF No. 99 at 1–5. Indeed, they go so far as to generally call digitized copies of physical works “bootleg.” Id. at 1.
Amicus respectfully submits that this Court should (1) reject Plaintiffs’ argument in support of their motion that CDL generally does not constitute fair use, and (2) regardless of this Court’s decision on the motions for summary judgment, narrowly construe the parties’ arguments to reach an outcome that has as little effect as possible on the hundreds of unrelated CDL programs at libraries around the country.
Amicus addresses three fundamental points for this Court’s consideration and benefit. First, CDL was carefully crafted to balance respect for public and private copyright interests in a digital age. Second, CDL creates enormous benefits for libraries, the users they serve, and society at large that are integral to the fair use analysis. Digital licensing, Plaintiffs’ proposed alternative to CDL, is wholly insufficient to fulfill libraries’ missions and hampers libraries’ ability to serve the public good.
Third, this Court should not adopt Plaintiffs’ overbroad attack on CDL. Whatever decision this Court reaches on the particular facts of these plaintiffs against this defendant’s particular CDL program, CDL has many different expressions and applications in libraries all over the United States, serving a diverse set of interests including publishers, authors, users, and libraries themselves. Plaintiffs flatten these distinctions, treating CDL as a monolithic bad and themselves as the monolithic representatives of the interests of copyright holders, when they represent only one profit-focused perspective in the equitable considerations of copyright law (and indeed, only one perspective of publishers). See, e.g., ECF No. 1 at 4–5.
Plaintiffs’ motion for summary judgment attacks and denigrates the very concept of CDL, when it just as easily could have been narrowly construed. A wide-reaching holding against CDL — which Plaintiffs request of this Court — would have wide-reaching consequences far beyond the parties, harming the ability of libraries to adequately serve the public in the digital age
On File With: Challenges of Inaccessible References
Get PDFThis article examines the use of “on file with” citations in student-edited law reviews and journals and their impact on future research endeavors. It then explores potential remedies to make unpublished materials held by authors more accessible and identifies factors to consider before posting these materials online. Finally, it argues that law libraries are best suited to develop solutions for making unpublished materials more accessible and to serve as long-term stewards of these valuable resources
House Rules: Congress and the Attorney-Client Privilege
Get PDFIn 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president’s personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have “long been understood” to retain not only constitutional privileges, but common law privileges developed by judges, including the attorney-client privilege. This was particularly surprising since Trump was not relying on the attorney-client privilege and the Court had never treated this common law privilege as overriding Congress’s Article I power to set its own procedures for conducting investigations.This article examines the merits of this claim from three possible sources of authority: separation of powers principles, congressional oversight precedents, and judicial rulings. It concludes that since the attorney-client privilege is rooted in common law, committees are not required to recognize it, but may do so if they choose. It also finds that although recipients of congressional subpoenas may assert applicable constitutional privileges to withhold certain subsets of attorney-client communications, these privileges may be limited. Finally, rather than assuming that the Chief Justice’s line was erroneous dictum or a sweeping new pronouncement with no explanation, this article offers an alternative reading that gives him the benefit of the doubt and aligns with current practice: recipients of congressional subpoenas retain their right to assert the privilege in separate proceedings, and complying with compulsory demands from Congress does not constitute a general waiver in other fora
A Process for Politics
Get PDFI argue that consistent and public process observance has a distinctly valuable function in sovereign debt restructuring, with no precise equivalent in national insolvency regimes. National regimes reflect the distribution bargains of their enactment, presumptively legitimate and binding. Debtors and creditors allocate insolvency losses in their shadow, with liquidation as a backstop and politics just outside the frame. All else equal, the restructuring process has a harder job with sovereign debt. There is no liquidation backstop and no default distribution scenario. Each crisis resolution episode must allocate losses from scratch among the country’s citizens, foreign and domestic creditors, and other stakeholders; it must generate legitimacy, secure compliance, and minimize spillovers and moral hazard ... within the constraints of sovereign immunity and non-dischargeability. Bargaining against this background can turn into an endless cat-and-mouse game, its outcome contingent on innumerable bespoke factors. Past bargains cast a faint shadow; at best, they might suggest a settlement range. A publicly visible, intelligible, consistent restructuring process can partly make up for the lack of prior settlement on loss allocation. It can anchor expectations, entrench channels of accountability, and keep sovereign debtors and creditors coming back to the negotiating table. Demand for such a public process might have been suppressed when a few governments and financial firms dominated the creditor pool in crisis after crisis, but those days are gone
Supreme Court Ruling on the Texas Abortion Law: Beginning to Unravel \u3ci\u3eRoe v Wade\u3c/i\u3e
Get PDFIn 2021, Texas enacted an abortion statute, SB8, stating “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” SB8’s prohibition applies broadly against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” The law’s design is unprecedented, enforced solely by private lawsuits, providing damages of $10,000 or more for each abortion. SB8 prohibits government enforcement, with the explicit intent of preventing federal judicial review. SB8 clearly violates current Supreme Court precedent creating a constitutional right to abortion before fetal viability.
Private litigants and the Justice Department launched a series of lawsuits in federal court to enjoin the law. On December 10, 2021, the Supreme Court, 8-1, in a fractured set of opinions, ruled that abortion providers may seek to enjoin a narrow group of government officials and employees, but the justices ruled against Justice Department litigation. Pending lower court decisions, the Court let SB8 stand despite the clear fact it violates Roe v. Wade.
This article explores majority’s reasoning, what it means for future enforcement of SB8 and access to abortion in Texas, and what may happen next in this case and related litigation, including the Supreme Court’s upcoming ruling in Dobbs v Jackson Women’s Health Organization. It also examines the decision’s implications for other constitutional rights beyond abortion
The First 2 Years of COVID-19: Lessons to Improve Preparedness for the Next Pandemic
Get PDFOn December 31, 2019, the World Health Organization (WHO) Country Office in China reported novel “viral pneumonias of unknown cause” in Wuhan, but China did not confirm case clusters until January 3, 2020. Two years later, more than 285 million cases and 5.4 million deaths have been reported. As of December 2021, more than 800 000 COVID-19 deaths have occurred in the US, surpassing the 675 446 total deaths that occurred during the great influenza pandemic of 1918. The COVID-19 pandemic reduced global economic growth by an estimated 3.2% in 2020, with trade declining by 5.3%; an estimated 75 million people entered extreme poverty, with 80 million more undernourished compared with prepandemic levels.1 Although the COVID-19 and 1918 influenza pandemics stand alone in morbidity and mortality, evidence suggests the frequency of infectious disease emergencies will increase. What lessons does COVID-19 teach to advance preparedness, detection, and response
Purpose Driven Companies in the United States
Get PDFThe United States is the birthplace of benefit corporations precisely because of American society’s over-reliance on the private sector to solve societal problems. U.S. federal and state regulation continuously fails to provide robust social safety nets or prevent ecological disasters. American society looks to companies to do such work. U.S. social enterprise entities attempt to upend the U.S. legal framework which binds fiduciaries to focus on shareholder value. These entities are permitted, and sometimes required, to take into account environmental, social, and governance (“ESG”) impacts of their operations, essentially internalizing ESG costs that would otherwise be paid by American communities and the environment. This chapter traces social enterprise development under U.S. law, starting with a brief discussion of corporate law as a creature of state law. It then provides an overview of the two major types of social enterprise entities in the United States: (1) the Delaware Public Benefit Corporation, and (2) the California Special Purpose Corporation. The chapter briefly discusses other types of U.S. social enterprise entities, including hybrid ventures, worker cooperatives, and the low-profit liability company. The chapter concludes with a discussion of responses to companies’ ESG efforts by legal scholars, asset managers, and the U.S. Securities and Exchange Commission. These responses and the uptake of publicly traded public benefit corporations indicate a seismic shift forward in the use of ESG frameworks in the United States
Can Micropolitan Areas Bridge the Urban/Rural Divide?
Get PDFThere exists a well-known and significant divide between urban and rural areas in the United States. The divide has been documented along multiple dimensions – social, economic, and political – and is seen as a detrimental characteristic of our national identity and capacity for both economic development and civil political discourse. In this Article, we explore a subset of the urban/rural divide and propose a mechanism for reducing its economic and political effects within that limited realm. Specifically, we focus on the subset of rural areas that lie within what the Office of Management and Budget defines as micropolitan areas. Micropolitan areas are characterized by an urban area with a population between 10,000 and 50,000, and adjacent rural counties. Data suggest that rural areas within micropolitan regions do better economically than rural areas unconnected to urban areas, though not as well as the principal city within the micropolitan area. If the objective is to reduce the economic, and perhaps the political divide between urban and rural areas, then micropolitan areas may represent low-hanging fruit for redress.This Article argues that micropolitan areas are an important window into understanding the relationship between urban and rural economies, explores the characteristics of those areas that are likely to generate economic success and recommends policies that would capture those benefits. Additionally, we speculate that increased opportunities for economic interaction between the urban and rural parts of micropolitan areas could also address the political aspects of the urban-rural divide. Recognizing the complexity of the relationship between urban and rural economies, we identify various obstacles to realizing the kinds of interlocal cooperation that we believe are necessary to reduce the economic and political divide within micropolitan areas. We conclude with suggestions for a research agenda to remedy the underdeveloped study of micropolitan areas