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Responding to COVID‐19: How to Navigate a Public Health Emergency Legally and Ethically
Get PDFWidespread social separation is rapidly becoming the norm, including closure of schools and universities, tele-commuting to work, bans on large gatherings, and millions of people isolated in their homes or make-shift facilities. Bans on international travel are already pervasive. Domestic travel restrictions are exceedingly rare, but now within the realm of possibility. Officials are even discussing cordon sanitaires (guarded areas where people may not enter or leave), popularly described as “lockdowns” or mass quarantines. When the health system becomes stretched beyond capacity, how can we ethically allocate scarce health goods and services? How can we ensure that marginalized populations can access the care they need? What ethical duties do we owe to vulnerable people separated from their families and communities? And how do we ethically and legally balance public health with civil liberties
Cicero and Barack Obama: How to Unite the Republic Without Losing Your Head
Get PDFBy turning to the works of Cicero and Barack Obama, we can find models of how to speak into crises in ways that foster unity. Cicero’s Catilinarian orations were delivered in 63 BCE, during his one-year term as consul—the highest elected official in the Roman Republic. Facing a conspiracy by certain noble Romans, Cicero delivered a series of four speeches that drove the chief conspirator out of Rome, turned public opinion against the conspirators, and convinced the Roman Senate to support the death penalty for conspirators who remained and were captured in Rome. The Fourth Catilinarian, in which Cicero advocates for the death penalty, is a prime example of a legal speech delivered in a political forum during a divisive time.
Barack Obama delivered “A More Perfect Union” to defuse a crisis following media reports of incendiary remarks made by his pastor, Rev. Jeremiah Wright of the Trinity United Church of Christ in Chicago, Illinois. In “A More Perfect Union,” delivered on March 18, 2008, Obama defended himself and addressed larger question of race relations in America.
There is much for lawyers to learn from the rhetoric of the Fourth Catilinarian and “A More Perfect Union.” In each case, a very strong orator faces a crisis and marshals evidence and arguments in favor of legal or quasi-legal determinations. The speakers do not hesitate to take strong positions, but the goal of each is unity: unity is an explicit call of each orator and a requirement to achieve the ends the speakers seek. Moreover, each orator positions himself as embodying the unity he advocates. These efforts to bridge deep divides can teach lawyers how to achieve results in challenging circumstances
Digital Smartphone Tracking for COVID-19: Public Health and Civil Liberties in Tension
Get PDFThis Viewpoint compares manual and digital strategies for coronavirus disease 2019 (COVID-19) contact tracing, describes how countries in Asia and Europe have used smartphone tracking, and discusses privacy and discrimination concerns and strategies for balancing public health and civil liberties in the US
The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary
Get PDFIn late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions
The Opening Argument for D.C. Statehood
No full textOn September 4, 2019, Mayor Muriel Bowser delivered the 2019-2020 Philip A. Hart Memorial Lecture “The Opening Argument for D.C. Statehood” at Georgetown Law. Major Bowser, a lifelong Washingtonian and the first woman to achieve a second term as mayor, gave the 30-minute address before a crowd in Hart Auditorium — then sat down with Dean William M. Treanor for a 30-minute question-and-answer session. Prior to serving as mayor, Bowser served as an Advisory Neighborhood Commissioner (2004-2006) and as a Member of the DC Council (2007-2015)
Supervised Injection Facilities: Legal and Policy Reforms
Get PDFThe US Centers for Disease Control and Prevention reported that more than 70 000 deaths from drug overdoses occurred in 2017, including prescription and illicit opioids, representing a 6-fold increase since 1999. Innovative harm-reduction solutions are imperative. Supervised injection facilities (SIFs) create safe places for drug injection, including overdose prevention, counseling, and treatment referral services. Supervised injection facilities neither provide illicit drugs nor do their personnel inject users. Supervised injection facilities are effective in reducing drug-related mortality, morbidity, and needle-borne infections. Yet their lawfulness remains uncertain. The Department of Justice (DOJ) recently threatened criminal prosecution for SIF operators, medical personnel, and patrons
Parol Evidence Rules and the Mechanics of Choice
Get PDFScholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, however, are as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard express integration rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms should automatically be integrated against consumerside communications, and never integrated against a business’s communications. The argument for each rule rests on the ways parties make and express contractual choices in these types of transactions. Whereas Dagan and Heller emphasize the different values at stake in different spheres of contracting, differences among parties’ capacities for choice — or the “mechanics of choice” — are at least as important
The “Conscience” Rule: How Will It Affect Patients’ Access to Health Services?
Get PDFOn May 2, 2019, the US Department of Health and Human Services (HHS) and Office of Civil Rights (OCR) released a final rule that heightens the rights of hospitals and health workers to refuse to participate in patients’ medical care based on religious or moral grounds. The rule covers OCR’s authority to investigate and enforce violations of 25 federal “conscience protection” laws. Tied to the US Constitution’s spending power, the rule applies to state and local governments, as well as public and private health care professionals and entities if they receive federal funds such as Medicare or Medicaid. The rule applies to a range of important health services such as abortions, sterilizations, assisted suicide, and advance directives—extending to sex reassignment and HIV treatment
Lessons from the Mueller Report, Part II: Bipartisan Perspectives: Hearing Before the H. Comm. on the Judiciary, 116th Cong., June 20, 2019 (Statement of Carrie Cordero)
Get PDFStabilizing “Pillar One”: Corporate Profit Reallocation in an Uncertain Environment
Get PDFThis paper is about how the world reestablishes international tax order.
The paper focuses on the OECD’s work on profit reallocation and asks whether this multilateral effort can be successful in stabilizing the international tax system. The analysis centers on the current leading concepts for reallocating profit among jurisdictions under what is known as “Pillar One” of the OECD work programme. To analyze whether any Pillar One concept can be turned into a stable multilateral regime, it is necessary to specify certain elements of what a proposal to reallocate profits might entail. Accordingly, this paper sets out two strawman proposals. One strawman uses a “market intangibles” concept that explicitly separates routine and residual returns. The other strawman may reach a similar result, but does not explicitly attempt to separate routine and residual returns. Instead, in current OECD parlance, it might be described as a “distribution-based” approach.
The paper asks whether either of the two strawmen could be agreed and stabilized multilaterally given the tools of modern international tax diplomacy. I conclude that the current procedural and institutional architecture for cementing international tax relations among states is inadequate to stabilize either of the strawmen. Nevertheless, with certain changes, reestablishing order may be possible. Moreover, I conclude that there are six key structural decisions that impact the ability to stabilize the international tax architecture in any Pillar One approach, and that these decisions are likely to be implicitly made in the course of choosing a political direction for Pillar One work in 2019. The choices made with regard to these decisions determine whether or not it will be possible to stabilize Pillar One.
Even if good resolutions are reached along these six dimensions, there are only a couple paths to stabilize the system. One path would involve using every tool in the current OECD arsenal in new and more expansive ways, and then substantially depoliticize international tax matters and remove G20 involvement, such that logics of appropriateness developed among tax administrators isolated from political pressures and acting through transnational networks could lend stability to a new set of rules and principles. Even then, only a few Pillar One compromises could be stabilized this way. The alternative path, which could stabilize a broader range of proposals, requires formalizing the new regime in international law through a true multilateral treaty