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Law’s Sentiments
Get PDFThe chapter argues that law and the Rule of Law do not displace moral sentiments, but rather require them, and sometimes produce them. Law gives us some sense of physical security and thereby makes possible the fellow feeling and empathy that are the root of moral action. The chapter seeks to make this claim plausible by looking at fiction that describes various dystopian lawless states, including the hierarchy of the Church, which law has been loath to enter, badly policed neighborhoods, nineteenth century American slavery, and early twentieth century patriarchal marriages. One lesson of much of this fiction is that these lawless dystopias not only leave their inhabitants with nasty, brutish and short lives, but also truncate their capacities for empathy and community
Universal Masking in the United States: The Role of Mandates, Health Education, and the CDC
Get PDFThe Centers for Disease Control and Prevention (CDC) recommends cloth face coverings in public settings to prevent spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes coronavirus disease 2019 (COVID-19). Face coverings decrease the amount of infectious virus exhaled into the environment, reducing the risk an exposed person will become infected.1 Although many states and localities have ordered mask use, considerable variability and inconsistencies exist. Would a national mandate be an effective COVID-19 prevention strategy, and would it be lawful? Given the patchwork of state pandemic responses, should the CDC have enhanced funding and powers to forge a nationally coordinated response to COVID-19 and to future health emergencies
Reforming and Strengthening the Centers for Disease Control and Prevention: Five Key Reforms to Renew the Agency’s Stature and Effectiveness
Get PDFThe US Centers for Disease Control and Prevention (CDC) is the world’s leading public health agency, so admired that whole regions and countries have borrowed its name—in Africa, Europe, even China. In past epidemics, CDC’s expertise was transformative, such as in AIDS, Ebola, Zika, and Influenza H1N1. If there ever were a moment for the CDC to show leadership domestically and globally, it was the COVID-19 pandemic. Yet, the CDC’s stature was diminished—not enhanced—in an administration that not only eschewed science and politically pressured the CDC, but also gave notice of withdrawal from the World Health Organization (WHO), where CDC staff were firmly embedded. Recognizing where the CDC fell short in 2020 can inform the Biden Administration how to reform and strengthen the nation’s public health agency. Deep structural reform should occur in at least five critical areas
The Misplaced Trust in the DOJ\u27s Expertise on Criminal Justice Policy
Get PDFAs should be clear, this is less a book review and more an in-depth exploration of a key point Professor Barkow makes in Prisoners of Politics as applied to the federal criminal justice system. Sure, we need expertise in order to make data-driven criminal justice policy decisions--as Barkow puts it, “[t]he key is to create and foster an institutional framework that prioritizes data” and “expertise” so as to “create incentives for key decisionmakers to be accountable for real results” (pp. 14-15). But in creating reforms, the kindof expertise is also important. Many federal policymakers currently view the DOJ and NAAUSA as possessing the most salient expertise on all criminal justice matters. This Review, I hope, calls that premise into serious doubt.
In Part I of this Review, I explain how the DOJ and NAAUSA have had a vise-like grip on federal policymakers when deciding criminal justice issues. In Part II, I detail their lobbying efforts in favor of longer sentences and against any reforms that would reduce sentences, and I explain why their claims against reform are flawed. Part III addresses the DOJ\u27s and the NAAUSA\u27s active opposition to criminal justice policies set by the presidents whom they serve because federal prosecutors seek to retain power to the exclusion of all other policy goals.
If we want a federal criminal justice system that reflects the goals of public safety, fairness, and equal enforcement, then federal policymakers should give less deference to the views of federal prosecutors because they do not possess the requisite expertise or will to move our policies toward those ends
Robert F. Kennedy and the Attorney General\u27s Referral Authority: A Blueprint for the Biden Administration
Get PDFFor nearly four years, the Trump Administration’s use of the Attorney General’s referral authority has been criticized by the legal left on both substantive and procedural grounds. With the advent of the Biden Administration, however, use of the authority for liberal ends deserves serious consideration. To conclude otherwise would be throwing the baby out with the bath water. This article argues that the referral authority can be used for liberal constructions of the immigration laws, and that the perfect model for the incoming administration is former Attorney General Robert Kennedy and his use of the authority for just such ends. Rather than continue recent Democrat Administrations’ failure to utilize the authority to its full potential, the Biden Administration should look to Kennedy for inspiration, and implement an aggressive use of the referral authority as part of its immigration agenda
A Global Survey of Potential Acceptance of a COVID-19 Vaccine
Get PDFSeveral coronavirus disease 2019 (COVID-19) vaccines are currently in human trials. In June 2020, we surveyed 13,426 people in 19 countries to determine potential acceptance rates and factors influencing acceptance of a COVID-19 vaccine. Of these, 71.5% of participants reported that they would be very or somewhat likely to take a COVID-19 vaccine, and 61.4% reported that they would accept their employer’s recommendation to do so. Differences in acceptance rates ranged from almost 90% (in China) to less than 55% (in Russia). Respondents reporting higher levels of trust in information from government sources were more likely to accept a vaccine and take their employer’s advice to do so
New Media, Free Expression, and the Offences Against the State Acts
Get PDFNew media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability and contribute to a volatile social environment. Significant political risks also accompany this novel genre. Hostile actors can use social media platforms to deepen political schisms, to promote certain candidates, and, as demonstrated by the recent Cambridge Analytica debacle, to swing elections. Extremist groups and terrorist organisations can use online interactions to build sympathetic audiences and to recruit adherents. Since 1939, the Offences Against the State Act (OAS) has served as the primary vehicle for confronting political violence and challenges to state authority. How effective is it in light of new media? The challenges are legion. Terrorist recruitment is just the tip of the iceberg. Social networking sites allow for targeted and global fundraising, international direction and control, anonymous power structures, and access to expertise. These platforms create spaces within which extreme ideologies can prosper, targeting individuals likely to be sympathetic to the cause, 24 hours a day, seven days a week, ad infinitum. They offer an alternative reality, subject to factual manipulation and direction—a problem exacerbated by the risk of so-called deep fakes: autonomously-generated content that makes it appear that people acted, or that certain circumstances occurred, which never did. In November 2019 the Irish Government adopted a new regulation targeting social media. The measure focuses on political advertising and to ensure that voters have access to accurate information. It does not address the myriad further risks. This chapter, accordingly, focuses on ways in which the Offences Against the State Act (OAS) and related laws have historically treated free expression as a prelude to understanding how and whether the existing provisions are adequate for challenges from new media
Presidential Powers and Response to COVID-19
No full textCDC modeling suggests that, without mitigation, SARS-CoV-2, the virus that causes novel coronavirus disease 2019 (COVID-19), could infect more than 60 percent of the United States population. President Trump has declared a national emergency coupled with 49 governors declaring state emergencies (Figure 1), unprecedented actions. Social distancing aims to flatten the epidemic curve to moderate demand on the health system. Consequently, whether through voluntary action or state mandates, individuals are increasingly sheltering at home, schools and universities are closing, businesses are altering operations, and mass gatherings are being cancelled. Some countries have resorted to more aggressive measures, including a cordon sanitaire (a guarded area where individuals may not enter or leave) or large-scale quarantines. What powers do the President and governors possess in the United States? How should we balance individual rights and public health at a critical point in safeguarding the nation’s health
Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment\u27s Right to Counsel
Get PDFFor nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.We contend that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor design: they do not align publicly funded defense attorneys with their clients’ best interests. This is particularly true when courts appoint private attorneys to represent indigent defendants for a fee, as is done in hundreds of jurisdictions across the United States. We explain how such assignment systems create an “incentive gap” that financially motivates defense attorneys to maximize their caseloads but minimize their efforts.We then show how campaign finance exacerbates this problem. Specifically, we provide empirical evidence that elected trial court judges and criminal defense attorneys regularly engage in “pay to play,” where judges appoint attorneys who donate to their campaigns as counsel for indigent defendants. We find trial judges routinely accept such donations, often as apparent “entry fees” from attorneys who have just become eligible for appointments. These judges, in turn, typically award their donors more than double the cases they award to non-donors, with the average donor attorney earning greater than a 27-fold return on her donation. Indeed, we find indigent defense appointments can be surprisingly lucrative, with many donor attorneys earning tens or even hundreds of thousands of dollars across the hundreds of cases assigned to them by their donee judges.Worse, this apparent quid pro quo between judges and defense attorneys appears to directly harm defendants. We find that defense attorneys who donate to a judge are, if anything, less successful than non-donor attorneys in attaining charge reductions, dismissals, and acquittals, or avoiding prison sentences. We contend donor attorneys might underperform simply because they take on so many more cases from their donee judges, and hence spend less time on each matter.Our study is the first empirical analysis of how campaign finance distorts criminal trial court decision-making. While our data are from Harris County (Houston), Texas—the nation’s third most populous county—we show that pay to play is probably endemic across that state. Indeed, similar problems likely affect millions of Americans, as trial judges who control indigent defense assignments in many other states—including California, Georgia, Maryland, Missouri, North Carolina, and Ohio, among others—accept attorney donations to fund their electoral campaigns. Unless substantial reforms are made to address the corrosive influence of campaign finance on criminal defense, the Sixth Amendment’s right to counsel will continue to ring hollow for millions of indigent defendants
Discounting Credibility: Doubting the Stories of Women Survivors of Sexual Harassment
Get PDFFor decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only limited attention to a factor that goes straight to the heart of the problem: our reflexive inclination to discount the credibility of women, especially when those women are recounting experiences of abuse perpetrated by more powerful men. We will not succeed in ending gender-based workplace discrimination until we can understand and resist this tendency and begin to appropriately credit survivors’ stories.
How does gender-based credibility discounting operate? First, those charged with responding to workplace harassment--managers, supervisors, union representatives, human resource officers, and judges—improperly discount as implausible women’s stories of harassment, due to a failure to understand either the psychological trauma caused by abusive treatment or the practical realities that constrain women’s options in its aftermath. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on their demeanor (as affected by the trauma they often have suffered); on negative cultural stereotypes about women’s motives for seeking redress for harms; and on our deep-rooted cultural belief that women as a group are inherently less than fully trustworthy.
The impact of such unjust and discriminatory treatment of women survivors of workplace harassment is exacerbated by the larger “credibility economy”—the credibility discounts imposed on many women-victims can only be fully understood in the context of the credibility inflations afforded to many male harassers. Moreover, discounting women’s credibility results in a particular and virulent set of harms, which can be measured as both an additional psychic injury to survivors, and as an institutional betrayal that echoes the harm initially inflicted by harassers themselves.
It is time—long past time--to adopt practical, concrete reforms to combat the widespread, automatic tendency to discount women and the stories they tell. We must embark on a path toward allowing women who share their experiences of male abuses of workplace power to trust the responsiveness of their employers, judges, and our larger society