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An Interprofessional Approach to Teaching Advocacy Skills: Lessons from an Academic Medical-Legal Partnership
Get PDFMedical students and educators recognize that preparing the next generation of health leaders to address seemingly intractable problems like health disparities should include advocacy training. Opportunities to acquire the knowledge and skills needed to effectively advocate at the policy level to promote systems-, community-, and population-level solutions are a critical component of such training. But formal advocacy training programs that develop and measure such skills are scarce. Even less common are interprofessional advocacy training programs that include legal and policy experts to help medical students learn such skills.
This 2016–2017 pilot study started with a legislative advocacy training program for preclinical medical students that was designed to prepare them to meet with Capitol Hill representatives about a health justice issue. The pilot assessed the impact of adding an interprofessional education (IPE) dimension to the program, which in this case involved engaging law faculty and students to help the medical students understand and navigate the federal legislative process and prepare for their meetings. Results from the pilot suggest that adding law and policy experts to advocacy-focused training programs can improve medical students’ advocacy knowledge and skills and increase their professional identity as advocates
Fiduciary Legal Ethics, Zeal, and Moral Activism
Get PDFThe recent turn to fiduciary theory among private lawyer scholars suggests that lawyer as fiduciary may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back on partisan zeal for moral reasons? So it might seem, and so some scholars have argued. Ethics rules permit lawyers to withdraw from representations they find morally repugnant, but not to represent clients with diminished zeal. And yet there are cases, such as peeking at metadata inadvertently transmitted in documents sent by an adversary, or exploiting scrivener\u27s errors, where many lawyers understandably back off from the sternest implications of partisan zeal. Such cases call into question whether lawyer as fiduciary tells the whole story. An adequate theory of the lawyer-client fiduciary relationship must define the limits to fiduciary zeal as well as justify the fiduciary relationship itself. Otherwise, invoking the word fiduciary merely relabels the moral problem of partisan zeal rather than resolving it
Copyright Reform: Imagining More Balanced Copyright Laws
Get PDFEarlier chapters of this book provide a history of copyright and libraries in the United States, a review of outdated language in the existing copyright code, and a discussion of actions by both copyright owners and the public to rebalance copyright outside of legislation. This chapter simply imagines what copyright could be if we disregard the known political and legal obstacles. It starts with no constraints, which one might argue is both impractical and foolish. Why spend time discussing what could be when treaties, self-interest, and powerful industry lobbies stand in the way?
The answer is simply that environments can be changed. They have been changed throughout history, whether through legislation (e.g., copyright terms), case law (e.g., fair use in relation to technology), or ground roots movements (e.g., the initial movement to recognize authors’ rights). And if one hopes to change history, why not start first by exploring possibilities that we might not consider otherwise? Refusing to consider change out of fear of opposition translates to a voluntary surrender of power.
Beginning with restraints also blinds one to possibilities of a much better construct than could be achieved with them. If everything has to fit in a box, people will often discard anything they think won’t fit at the outset. Only by removing the box can we imagine the full range of benefits of a given course of action. If the outcome is desired, then efforts can turn to whether or not there is a way to fit the outcome into the box. Or to decide if the benefits are so great that destruction of the box is in society’s best interest. A vision should start with where one thinks the world should be, and then reality can help to shape the path.
Because this is the last chapter in the book, to fully understand how the guiding interests were chosen, one would need to read the preceding chapters
Considering Law and Macroeconomics
Get PDFThe worst financial and economic crisis to hit the world’s richest economies since the Great Depression inspired a flood of scholarship that straddled the disciplines of law and macroeconomics. With few exceptions, this crisis scholarship did not set out to build a new interdisciplinary movement and did not claim the legacy of earlier efforts to mine the intersection of law and macroeconomics. What are we to make of this moment ten years on? Could Law and Macroeconomics (#LawMacro for short) be an important new turn in legal and economic thought, a casual interdisciplinary tryst on the margins of a hundred-year flood, or, paraphrasing one commentator, this generation’s Freudian pushback against the venerable Law and Economics movement? This symposium issue of Law and Contemporary Problems offers a sampling of views from a September 2019 conference at Georgetown Law on the prospects for LawMacro as a field of inquiry. Our principal goal for the Conference and this Issue has been to consider the scope for more systematic, sustained engagement between law and macroeconomics, distilling post-crisis research trends, and identifying avenues for future collaboration
How to Keep the United States in the WHO: Immediate Withdrawal Would Be a Global Health and a Legal Disaster
No full textThe same week that the United States passed the grim milestone of 100,000 deaths from COVID-19, President Donald Trump announced that the United States would withdraw from and end its funding for the World Health Organization (WHO). If carried out, especially in the middle of a pandemic, this move would mark one of the most ruinous presidential decisions of modern history—a blow to global health security and to the rule of law.
Fortunately, neither the U.S. Congress nor the U.S. courts need stand by: the president’s call reflects a misunderstanding of both the WHO and its limitations and his own authority to withdraw from it unilaterally. Congress should immediately hold hearings to clarify whether it is legal and wise to withdraw from the WHO, given the dire consequences for U.S. security and global health. And litigants should go to court to clarify that the president lacks the constitutional power he claims. As the novel coronavirus pandemic has made clear, public health is everyone’s problem
Postscript: COVID-19 and the Legal Determinants of Health
Get PDFThis is a short postscript to the Public Health Ethics special issue on the legal determinants of health. We reflect briefly on emerging responses to COVID-19, and raise important questions of ethics and law that must be addressed; including through the lens of legal determinants, and with critical attention to what it means to protect health with justice
Chevron As Construction
Get PDFIn 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. Chevron as construction is supported by powerful arguments; it is consistent with the underlying sources of law, and agencies have relevant comparative advantages in developing implementing principles. Chevron as interpretation is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era
Interring the Immigration Rule of Lenity
Get PDFThe immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even this rhetorical role has been called into question with the advent of Chevron deference. The raison d’etre of the rule was to provide the basis of decision when the court was confronted with two equally plausible interpretations of a statutory provision. Chevron now fills that gap, and there seems no room left for the immigration rule of lenity in modern administrative law. Rather than continue to allow this outmoded rule of decision to stalk argumentation in immigration cases, the Supreme Court should simply euthanize and inter the rule at the earliest opportunity
States’ Evolving Role in the Supplemental Nutritional Assistance Program
Get PDFStates have always been crucial to the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps). Even though the federal government has paid virtually all the program’s benefit costs, state administration has always been indispensable for several reasons. State and local governments pay their staff considerably less than the federal government, making state administration less expensive. States already administer other important antipoverty programs, notably family cash assistance and Medicaid, allowing them to coordinate the programs and minimize repetitive activities. And states have somewhat lower, and less polarizing, political footprints than does the federal government, moderating criticism of the program. In addition, giving states a stake in SNAP’s administration often has co-opted them to support, or at least avoid attacking, the program
Probability, Presumptions and Evidentiary Burdens in Antitrust Analysis: Revitalizing the Rule of Reason for Exclusionary Conduct
Get PDFThe conservative critique of antitrust law has been highly influential and has facilitated a transformation of antitrust standards of conduct since the 1970s and led to increasingly more permissive standards of conduct. While these changes have taken many forms, all were influenced by the view that competition law was over-deterrent. Critics relied heavily on the assumption that the durability and costs of false positive errors far exceeded those of false negatives.
Many of the assumptions that guided this retrenchment of antitrust rules were mistaken and advances in the law and in economic analysis have rendered them anachronistic, particularly with respect to exclusionary conduct. Continued reliance on what are now exaggerated fears of “false positives,” and failure adequately to consider the harm from “false negatives,” has led courts to impose excessive demands of proof on plaintiffs that belie both established procedural norms and sound economic analysis. The result is not better and more reasonable antitrust standards, but instead an embedded ideological preference for non-intervention that creates a tendency toward false negatives, particularly in modern markets characterized by economies of scale and network effects.
In this article, we explain how these erroneous assumptions about markets, institutions, and conduct have distorted the antitrust decision-making process and produced an excessive risk of false negatives in exclusionary conduct cases involving firms attempting to achieve, maintain, or enhance dominance or substantial market power. To redress this imbalance, we integrate modern economic analysis and the teaching of decision theory with the foundational conventions of antitrust law, which has long relied on probability, presumptions, and reasonable inferences to provide more effective means for evaluating competitive effects and resolving antitrust claims