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The Kids Are Not Alright: Leveraging Existing Health Law to Attack the Opioid Crisis Upstream
Get PDFThe opioid crisis is now a nationwide epidemic, ravaging both rural and urban communities. The public health and economic consequences are staggering; recent estimates suggest the epidemic has contracted the U.S. labor market by over one million jobs and cost the nation billions of dollars. To tackle the crisis, scholars and health policy initiatives have focused primarily on downstream solutions designed to help those who are already in the throes of addiction. For example, the major initiative announced by the U.S. Surgeon General promotes the dissemination of naloxone, which helps save lives during opioid overdoses.
This Article argues that the urgency and gravity of the opioid crisis demand a very different approach. To stop the epidemic, interventions are needed long before people are on death’s doorstep. Rather, it must focus on upstream interventions that stop people from becoming addicted in the first place.
To accomplish this, we should leverage an existing legal infrastructure that is already capable of such a preventive response. Although largely overlooked as a tool in tackling this epidemic, children’s Medicaid, known as the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit, provides a mechanism to identify at-risk children and the treatment necessary to shift their life trajectories off of the road to addiction. This Article lays out a blueprint for the ways in which EPSDT, the largest provider of children’s health insurance in the country, facilitates best practices in substance abuse prevention through (1) regular mental health and substance abuse screening in the doctor’s office and (2) the provision of medically necessary treatment for children at risk for and engaged in opioid and other substance abuse.
This upstream approach is consistent with Lifecourse Health Development theory, which emphasizes strategies that address risk factors and burgeoning health conditions in childhood before they become debilitating. Indeed, through the Medicaid statute and its legislative history, executive branch guidance, and judicial precedent, all three branches of the federal government have endorsed the power of Medicaid EPSDT to address health conditions early and preventively. This Article argues that this existing infrastructure should be leveraged so that at-risk children can access mental health and substance abuse services before a next generation falls victim to the greatest public health crisis of our time
Catalyzing Privacy Law
Get PDFThe United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for privacy.Our close comparison of the GDPR and California’s privacy law reveals that the California law is not GDPR-lite: it retains a fundamentally American approach to information privacy. Reviewing the literature on regulatory competition, we argue that California, not Brussels, is catalyzing privacy law across the United States. And what is happening is not a simple story of powerful state actors. It is more accurately characterized as the result of individual networked norm entrepreneurs, influenced and even empowered by data globalization. Our study helps explain the puzzle of why Europe’s data privacy approach failed to spur US legislation for over two decades. Finally, our study answers critical questions of practical interest to individuals—who will protect my privacy?—and to businesses—whose rules should I follow
The Promise and Challenge of Humanitarian Protection in the United States: Making Temporary Protected Status Work as a Safe Haven
Get PDFThe humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried that this temporary program would lead to permanent immigration. To constrain the program, Congress required a supermajority of the Senate for any nationality to be granted lawful permanent resident status as a group, which would place such individuals on a path to citizenship. Congress has never granted group status in this way to any TPS nationality.
Congress also worried that even temporary legal status for conflict refugees and other eligible humanitarian groups would act as a magnet and attract large movements to the U.S. For that reason, Congress required that eligible individuals had to already be in the U.S. when the DHS Secretary designated their nationality for TPS. Accordingly, Congress designed TPS in a way that did not protect ongoing arrivals fleeing a humanitarian emergency.
Congress should address both of these shortcomings. This article explains why and how it should do so. As DHS data shows, TPS has not acted as a magnet—even after DHS has repeatedly opened up temporary protection for some new arrivals through twenty re-designations of eleven nationalities. The data shows that it is not the policy that attracts people to the U.S., but rather a fear of death or very serious harm that principally motivates flight from conflict and significant violence. Accordingly, Congress can provide the same type of temporary protection to new arrivals fleeing an ongoing crisis that many nations do, including the United Kingdom and Canada, without worrying that TPS itself will act as a magnet.
Moreover, Congress did not know in 1990 that limiting access to lawful permanent resident status when a crisis does not end would effectively lead to long-term TPS programs. Over time, people put down strong roots in their communities through work, family, education, and religious institutions. Given this limitation in the current law, Congress should adopt ways to keep TPS temporary both by facilitating return when conflict ends in a reasonable period of time and by enabling those who have become part of their American communities to be recognized as such when violence and instability is prolonged.
TPS policies have not resulted in a significant magnet effect after twenty-six designations and one hundred twenty-two separate extensions covering twenty-two nationalities. Accordingly, Congress can act more generously by providing a temporary measure of protection to all those who flee serious harm or devastation and by transitioning temporary protection to a permanent status for individuals who cannot return home safely after a reasonable period of time. By enacting these reforms, lawmakers will enable TPS to achieve its full potential as a robust humanitarian policy
Supreme Court Institute Annual Report, 2018-2019
Get PDFDuring the U.S. Supreme Court’s October Term (OT) 2018 – corresponding to the 2018-2019 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 99% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students. The varied affiliations of advocates mooted this Term reflect SCI’s firm commitment to provide assistance to advocates without regard to the party represented or the position advanced.
A list of all SCI moot courts held in OT 2018 – arranged by argument sitting and moot court date, and including the name and affiliation of each advocate and the number of observers – follows the narrative portion of this report
Post-Crisis Economic and Social Policy: Some Thoughts on Structural Reforms 2.0.
Get PDFManaging the euro crisis has been a process of institutional transformation for the EU. The European Semester has emerged as a powerful tool for economic policy coordination between the Member States. Beyond the new enforcement tools that the Semester affords the Commission and Council in case of non-compliance with country-specific recommendations, the management of the crisis has given the Commission experience in structural reforms. The Commission now regularly uses this experience in formulating its yearly country-specific recommendations to Member States. Far from a stalwart of untethered neoliberalism, the Commission has been fashioning itself as the manager with a human face, the institution that understands both the structural reform requirements for a global economy, and the special need for strong social institutions that could shield European citizens from the worst of the shocks provoked by globalized markets. Hence the name, “Structural Reforms 2.0,” per the Juncker Commission.
In this chapter, I review the Commission’s emerging structural reform “know-how,” as represented in its latest reflection papers and European Semester documents. The European Commission seems to have drawn from its experience in managing loan conditionality for debtor countries like Greece, Portugal, and Ireland, in order to come up with the set of structural reforms that it considers necessary for any country to thrive within the context of the euro. At the same time, it has taken on board the critiques of structural reforms that point to the potentially negative short-term effects of structural adjustment. Thus, the Commission seems to have fully embraced the idea of the EU as a soft alternative to unfettered globalization and has taken it upon itself to monitor certain aspects of the welfare state in Member States.
The Commission’s recommendations, however, while presented in the mode of technocratic expertise, entail deeply political choices in almost every imaginable regulatory field. Despite constant assurances that there is no “one-size fits all” model for structural reforms, what is shaping up through the European Semester is effectively a list of desirable reforms—a set menu of options—which the Commission now openly characterizes as “EU best practices.” If applied, they would provoke deep restructurings and adjustments of national political economies with winners and losers to boot. These demands for deep restructurings are couched in a language of technical adjustment and fine-tuning that does not do justice to the qualitative reform required of the Member States nor to the substantive trade-offs between market efficiency and social fairness that only a democratic process can legitimize. Contrary to some observers, I conclude that the inclusion of social policy goals into the European Semester can be an indication of both the success of socially minded actors in influencing the content of macroeconomic governance, and of the success of market-minded actors in adapting to demands for “social fairness” in macroeconomic governance without ceding much space in terms of the kinds of reforms required. Much of this “socialization” of the European Semester will depend on how the rest of the management of the common currency evolves
Shared Collection Development, Digitization, and Owned Digital Collections
Get PDFWhile library models already exist for sharing physical materials and joint licensing, this paper envisions an aspect of future collections involving a national digital collection owned, not licensed, by libraries. Collaborative collection development, digitization, and digital object management of owned collections can benefit societies in multiple ways, from expanding access to users otherwise unable to reach these materials, to preserving content even when disaster strikes, to reducing duplication of effort and expense in collection or digitization. This article will explore both the benefits of and the challenges to this type of collaboration
Down to the Last Strike: The Effect of the Jury Lottery on Criminal Convictions
Get PDFHow much does luck matter to a criminal defendant in a jury trial? We use rich data on jury selection to causally estimate how parties who are randomly assigned a less favorable jury (as proxied by whether their attorneys exhaust their peremptory strikes) fare at trial. Our novel identification strategy uniquely captures variation in juror predisposition using data unobserved by the econometrician but observed by attorneys. Criminal defendants who lose the “jury lottery” are more likely to be convicted than similarly-situated counterparts, with a significant increase (18-20 percentage points) for Black defendants. Our results are robust to alternate specifications and raise questions about race and the use of peremptory strikes in the criminal justice system
The Legal Determinants of Health: Harnessing the Power of Law for Global Health and Sustainable Development
Get PDFHealth risks in the 21st century are beyond the control of any country. In an era of globalization, promoting public health and equity requires cooperation and coordination both within and among states. Law can be a powerful tool for advancing global health, yet it remains significantly underutilised and poorly understood. Working in partnership, public health lawyers and health professionals can become champions for evidence-based laws to ensure the public’s health and safety.
The O\u27Neill Institute/Georgetown University Lancet Commission on Law and Global Health articulates the vital role of law – through legal instruments, legal capacities, and institutional reforms, as well as the rule of law – to achieve global health with justice. Our report is structured around four “legal determinants of health,” each of which powerfully affects health outcomes. We coin the term legal determinants of health because it demonstrates law’s power to address the underlying social and economic causes of injury and disease. The four legal determinants, together with key recommendations, are: Law can translate vision into action on sustainable development. Law can strengthen the governance of national and global health institutions. Law can implement fair, evidence-based health interventions. Building legal capacities for health. Strong legal capacities are a key determinant of progress towards global health and sustainable development.
By providing insight on the legal determinants of health, our aim is to empower the global health community to strengthen its legal capacity, and to use law more strategically in the pursuit of health and equity
Disclosure\u27s Purpose
Get PDFThe United States securities regulatory infrastructure requires disclosure of a wide array of information both by and about covered companies. The basic purpose of the disclosures is to level the playing field – for investors, for issuers, and for the public. Although investor protection is the disclosure goal often touted, this article develops the purposes of disclosure extending beyond investors to issuers and the public. Indeed, the disclosure system is designed to level the playing field for issuers— addressing confidentiality concerns, for example. In addition, the system helps to promote confidence in the markets, which, in turn, enables growth and innovation by creating access to capital – goals important to issuers. Yet, as importantly, the system also protects the public more broadly. After all, the harms of market crashes and other disruptions are not confined to investors and issuers – despite the fact that writing in this space focuses largely on them.
Disclosure’s purpose, then, is to diminish asymmetries and the space for fraud, both for those within the entity and for the public affected by the entity. To achieve these purposes, the system depends on gatekeepers, like corporate directors who are assigned a role in effectively managing the purpose and consequences of disclosure. Doing so requires them take ownership of both the ensuing internal discourse between the entity, its insiders, and its owners, as well as the external discourse with the entity’s public stakeholders and the public more generally. When directors do so, the resulting discourse and candor helps to ensure the purposes of disclosure are met.
This article examines the purpose and regulation of this discourse, emphasizing the role of the board of directors and its attention to public stakeholders and the public, with a particular focus on omissions. The article proceeds as follows. Part I explores the purposes of disclosure in corporate discourse and how disclosure requirements are designed to transmit information. As we will see, the securities disclosure regime aims to address a broad range of issues -- from fairness to market competitiveness. Part II develops the omissions theory in the context of the purposes of disclosure, as well as explicating their role in corporate discourse. Part III turns to the board and its responsibilities with respect to the purposes of securities disclosures and corporate discourse, with a particular emphasis on omissions and candor, and deployng some case studies to develop the theories further. Part IV analyzes the relationship between directors, disclosure (and its purpose) and omissions, and publicness, tying the information-forcing-substance theory to director gatekeeping and explicating how it can result in more thorough disclosure outcomes for investors, issuers, and the public – and thereby, fulfill disclosure’s purpose
Empiricism and Privacy Policies in the Restatement of Consumer Contract Law
Get PDFThe Draft Restatement of the Law of Consumer Contracts includes a quantitative study of judicial decisions concerning businesses’ online privacy policies, which it cites in support of a claim that most courts treat privacy policies as contract terms. This Article reports an attempt to reproduce that study’s results. Using the Reporters’ data, this study was unable to reproduce their numerical findings. This study found in the data fewer relevant decisions, and a lower proportion of decisions supporting the Draft Restatement position. It also found little support for the Draft’s claim that there is a clear trend recognizing privacy policies as contracts, and none for the claim that those decisions have been more influential than decisions coming out the other way. A qualitative analysis of the decisions in the dataset reveals additional issues.The analysis reveals that the Draft Restatement study’s numerical results obscure both the many judgment calls needed to code the decisions and their limited persuasive power. These results confirm the importance of transparency and replication in empirical case law studies. They also suggest that the closed nature of the Restatement process is perhaps ill-suited to producing reliable large-scale quantitative case law studies