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Access to lifesaving medical resources for African countries: COVID-19 testing and response, ethics, and politics
Get PDFCoronavirus disease 2019 (COVID-19) has revealed how strikingly unprepared the world is for a pandemic and how easily viruses spread in our interconnected world. A governance crisis is unfolding alongside the pandemic as health officials around the world compete for access to scarce medical supplies. As governments of African countries, and those in low-income and middle-income countries around the world, seek to avoid potentially catastrophic epidemics and learn from what has worked in other countries, testing and other medical resources are of concern. With accelerating spread, funding is urgently needed. Yet even where there is enough money, many African health authorities are unable to obtain the supplies needed as geopolitically powerful countries mobilise economic, political, and strategic power to procure stocks for their populations.
We have seen this before. In the AIDS pandemic lifesaving diagnostics and drugs came to many African countries long after they were available in Europe and North America. In 2020, this situation can be avoided. Although health system weakness remains acute in many places, investments by national governments, the African Union, and international initiatives to tackle AIDS, tuberculosis, malaria, polio, and post-Ebola global health security have built important public health capacities. Global leaders have an ethical obligation to avoid needless loss of life due to the foreseeable prospect of slow and inadequate access to supplies in Africa
The Novel Coronavirus Originating in Wuhan, China: Challenges for Global Health Governance
No full textOn December 31, 2019, China reported to the World Health Organization (WHO) cases of pneumonia in Wuhan, Hubei Province, China, now designated 2019-nCoV. Mounting cases and deaths pose major public health and governance challenges. China’s imposition of an unprecedented cordon sanitaire (a guarded area preventing anyone from leaving) in Hubei Province has also sparked controversy concerning its implementation and effectiveness. Cases have now spread to 4 continents. We describe the current status of 2019-nCoV, assess the response, and offer proposals for bringing the outbreak under control
Confronting Memory Loss
Get PDFThe Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen the crime or identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions denied certiorari by the Supreme Court in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. The purpose of this Article is to identify and discuss eight key issues arising in connection with memory impairment in Confrontation Clause witnesses. Although the Court chose not to put these issues to bed in the context of White or Tapia, these are the issues we anticipate federal and state courts will be called upon to answer in the coming years, and we suspect the Supreme Court will eventually need to answer them
Supreme Court Institute Annual Report, 2019-2020
Get PDFDuring the U.S. Supreme Court’s October Term (OT) 2019—corresponding to the 2019-2020 academic year—the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Supreme Court, offered a variety of programs related to the Court, and continued to integrate the moot court program into the Law Center curriculum. As in past Terms, the varied affiliations of advocates mooted this Term reflect the SCI’s commitment to assist advocates without regard to the party represented or the position advanced.
The OT 2019 Term was significantly impacted by the COVID-19 Pandemic. The Supreme Court cancelled its March and April Sittings, and in an unprecedented step, later scheduled a May Sitting to hear nine cases telephonically. To prepare advocates for these arguments, the SCI held remote moot courts using Zoom. Ten cases previously scheduled to be heard in March or April were postponed until the OT 2020 Term.
Even with the cancellation or delay of 19 scheduled moot courts, attendance at SCI moots was exceptionally strong. A total of 1114 observers, averaging 19 per moot court, attended SCI moots. This high attendance is particularly notable because the SCI held 10 fewer moots than the average 69 moots held in the previous nine Terms, and the entire May Sitting was held after classes had ended.
A list of all SCI moot courts held in OT 2019—arranged by sitting and moot court date, including the name and affiliation of each advocate and the number of student observers—is included at the end of this report
Choice of Law as Extraterritoriality
Get PDFThis contribution to Resolving Conflicts on the Law: Essays in Honour of Lea Brilmayer (published under the title Choice of Law as Geographic Scope Limitation) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in all-encompassing terms, the courts assume that the legislature did not intend to legislate for the whole world. They assume that the legislature enacted the statute with the purely domestic case in mind, with the understanding that cases with foreign elements will be addressed through the application of prevailing choice-of-law rules. A state’s choice-of-law rules thus operate as background principles of interpretation to determine the territorial reach of state law, just as federal extraterritoriality doctrine operates as a background principle of interpretation for federal statutes.
Although this understanding of choice-of-law rules has a long pedigree, it has not been universally embraced. In particular, influential scholars have developed a two-step theory of choice of law, under which only the principles that courts apply at the first step address the law’s territorial scope. If these first-step rules yield the conclusion that more than one state’s laws extend to the case at hand, the courts resolve this conflict at the second step by applying “rules of priority.” The latter rules, according to the two-step theorists, do not address the law’s reach; rather, they empower the courts under specified circumstances to decline to apply the forum’s concededly applicable law in favor of another state’s law. The distinction is important for two-step theorists, as they maintain that other states are required to give effect to step-one rules that render the state’s law inapplicable to the case at hand, but are under no obligation to give effect to a state’s step-two rules, even if they would lead the courts of that state not to apply the state’s law to the case at hand.
This essay questions the claim that step-one rules operate as limitations on a law’s territorial but step-two rules do not. Either both operate as territorial scope limitations or neither does. The essay goes on to agree with the two-step theorists that step-two rules are not binding on the courts of other states, while disagreeing with their contention that step-one rules are binding on other states. The final section considers whether the conclusion that neither category of choice-of-law rules is binding on other states means that choice-of-law rules do not in fact operate as limitations on a law’s territorial scope, and offers two alternative conceptualizations of choice-of-law rules that would explain the freedom of sister states to disregard them
Do bans help modern public health?
Get PDFA century ago, the 18th Amendment to the United States Constitution went into effect, banning the “manufacture, sale, or transportation of intoxicating liquors.” Fourteen years after its ratification, the 18th Amendment was repealed by the 21st Amendment. What did Prohibition teach us about banning hazardous products like alcohol, tobacco, or e-cigarettes
Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument
Get PDFThe social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote on behalf of all household members. On this understanding, coverture and the state functioned as interlocking systems of governance. The nineteenth century Women’s Rights Movement was a campaign to reshape American democracy; eliminating coverture and extending full citizenship rights to women were necessary to achieve that goal. To use a phrase that we now associate with same-sex couples, it was the nation’s first marriage equality movement.
Adoption of the Nineteenth Amendment marked a new social under-standing that constitutional principles and democratic norms must apply to women’s role in marriage as well as to women as citizens. The movement began by articulating a concept of collective liberty, which grew out of experiences in the anti-slavery movement and which expanded on the Founders’ more individualist concept of liberty in the Declaration of Independence. After the Civil War, the equality discourse of the Reconstruction Amendments and the rejection of women’s demands for the vote by both Congress and the Supreme Court reshaped the dominant theme of women’s rights efforts into a campaign for equality. The refusal by federal lawmakers to address women’s issues left them no recourse except to lobby state legislators, which women’s groups undertook on both suffrage and marriage law. But the diffuse, localized nature of family law presented insuperable barriers to ending coverture in one pre-emptive action.
The Nineteenth Amendment reflects these dual goals in its text and sub-text. The former prohibits denial of the vote based on sex, and the latter, by enabling women’s full participation in political life, rebuts the heart of the rationale for coverture: that women’s role in society lay solely in the domestic sphere of home and marriage.
Failure to understand the centrality of marriage-law reform to the social and political meaning of the Nineteenth Amendment has impoverished the constitutional grounding for contemporary challenges to the legal regulation of marriage, including the Supreme Court’s decision in Obergefell v. Hodges. In Obergefell, which prohibited the exclusion of same-sex couples from marriage, the Court missed an opportunity to draw on the history and meaning of the Amendment to frame the issue as implicating dual systems of governance, both of which must be bound by constitutional principles. Instead, the Court described marriage as a largely prepolitical realm of private, idealized relations. The opinion of the Court failed to comprehend the extent to which marriage today continues to function as an institution of the state and a zone of governance, no longer because of coverture but because it is foundational to the privatization of collective responsibility that is embedded in the nation’s primary systems of social insurance
Is Data Localization a Solution for Schrems II?
Get PDFFor the second time this decade, the Court of Justice of the European Union has struck a blow against the principal mechanisms for personal data transfer to the United States. In Data Protection Commissioner v Facebook Ireland, Maximillian Schrems, the Court declared the EU-US Privacy Shield invalid and placed significant hurdles to the process of transferring personal data from the European Union to the United States via the mechanism of Standard Contractual Clauses. Many have begun to suggest data localization as the solution to the problem of data transfer; that is, don’t transfer the data at all. I argue that data localization neither solves the problem of foreign surveillance, nor enhances personal privacy, while undermining other values embraced by the European Union
The Freedmen’s Memorial to Lincoln: A Postscript to \u3cem\u3eStone Monuments and Flexible Laws\u3c/em\u3e
Get PDFIn a recent essay in the Florida Law Review Online, I argued that historic preservation law poses no significant barrier to removal of Confederate monuments and even provides a useful process within which a community can study and debate the fate of specific statues. The cultural and legal issues surrounding the removal of Confederate monuments are presented in a surprising and paradoxical form in the controversy surrounding the 1876 Freedmen’s Memorial to Abraham Lincoln. Addressing these issues provides an interesting postscript to the seemingly easier questions raised by the removal of monuments to the Lost Cause. I argue that Section 106 of the National Historic Preservation Act provides a useful process for understanding and discussion, and should not be short-circuited by federal legislation
(Not the) Same Old Story: Invisible Reasons for Rejecting Invisible Wounds
Get PDFThousands of former military servicemembers have been discharged with other-than-honorable discharges due to misconduct that can be traced to a mental health condition. These veterans may request a post-discharge change to their discharge characterization—known as a “discharge upgrade.” Discharge review boards consider discharge upgrade requests and typically (90-99% of the time) deny the requests. In the past few years, the Department of Defense has issued new policy guidance partly in response to the low grant rate and to specifically address the growing understanding of the relationship between misconduct and mental health conditions for military servicemembers. The policy guidance requires the boards to give “liberal consideration” to veterans seeking relief for matters relating to “invisible wounds,” such as post-traumatic stress disorder.
Liberal consideration mandates a relaxed view of misconduct in connection to mental health conditions, with the overall goal of granting relief to those who deserved it. Despite the significant shift in policy, there has been very little change in the rate of discharge upgrades granted. This essay seeks to explore why liberal consideration has not had its intended effect. Rather than take on a comprehensive evaluation of the liberal consideration policy, this essay intentionally narrows in on one possible explanation for why liberal consideration has not been fully implemented. In exploring this implementation gap, the essay looks to storytelling and rhetorical principles to consider a possible explanation for the boards’ failure to embrace liberal consideration. The essay applies a narrow slice of storytelling scholarship—how humans respond to stories—to the specific context of discharge review board decisions