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The New Frontier for Labor in Trade Agreements
Get PDFIn the spring of 2015, I took my students of international trade law to visit the World Trade Organization (WTO) in Geneva. It was a two-day trip, organized around lectures and discussions with staff from different divisions of the organization, the Advisory Centre of WTO Law and the permanent missions of two countries. None of my students had been there before, and even though I had taught international trade law for several years, it was also my first time visiting the headquarters of the organization. We were excited and curious. The building looked big and majestic. The back side opened to a spacious park overlooking Lake Geneva. It made for a pleasant tour on a cool, sunny morning. The WTO was celebrating its 20th anniversary, and there were banners hanging from the walls in the internal atrium marking the occasion, as well as announcements of events to come.
In our second session, we were led to a room with wooden panels and a colorful mural that spanned the four walls. It depicted industrial workers—strong men making a car, miners, shipbuilders, men using heavy equipment, but also women, seamstresses, teachers and a few children. In the center a bare-chested man between two goddess-like women was holding a torch. The mural struck me as an ode to work, to achievement and to emancipation. A tale of the human race transforming the world through physical and intellectual labor. The painting, by Dean Cornwell, reminded me of the frescos of Mexican artist Diego Rivera in its depiction of industrial workers, although this one had no reference to exploitation or the confrontation between capital and labor. It was an incredibly optimistic image of work and human progress.
I was surprised to see a mural of workers in the WTO. The painting seemed not only vintage but also out of place. What was it doing here
Brief of Amicus Curiae 290 Criminal Law and Mental Health Law Professors in Support of Petitioner\u27s Request for Reversal and Remand, Kahler v. Kansas, 18-6135 (U.S. June 6, 2019)
Get PDFAmici curiae are a group of philosophically and politically diverse law school professors and scholars in the fields of criminal law and mental health from a variety of disciplines who have been teaching and writing about the insanity defense and related issues throughout their careers. They include the authors of leading criminal law and mental health law treatises and casebooks and numerous important scholarly books and articles.
Amici believe this case raises important questions about principles of criminal responsibility, the integral role of the insanity defense in Anglo-American law, and the inadequacy of the “mens rea alternative” to the traditional affirmative defense. Their teaching and research on the subject have given them a unique appreciation of the historical and doctrinal significance of the defense of legal insanity
Building Bridges Across Curricular and Status Lines: Gender Inequity Throughout the Legal Academy
Get PDFFunctional Secrecy
Get PDFMany theorists consider secrecy inimical to liberal democracy. Precise examination of the role that it plays in contemporary government, however, including its strengths and weaknesses, has been limited. This chapter, accordingly, lays out a functional theory of secrecy, considering its role in the three branches of government in four contexts: deliberation, information security, law, and adjudicatory processes. Whether and to what extent cloaking information advances the interests of the state and society varies according to how it operates in each category. First, deliberative secrecy carries significant advantages: it can facilitate informed debate and honest exchange, allowing individuals to alter their views without losing face and ensuring that the final determination is made on the merits. The nature of the deliberations alter as the outcome approaches implementation of the law, adoption of rules, and resolution of a legal question. Communications may become probative, if not dispositive, of the final rule, interpretation, policy, or decision. Along this spectrum, the impact of secrecy shifts from facilitating open exchange to obfuscating the final finding, law, or judgment. As it does so, the quality of the communication shielded from public scrutiny shifts from deliberative-secrecy to information-secrecy or secret law, in which capacity it may undermine the effective operation of a liberal, democratic state. Second, information secrecy masks data that the government obtains or generates. It encompasses controls placed on material (e.g., classification, informal controls, and patent secrecy orders) as well as restrictions on government employees. Secrecy functions in this realm to forestall efforts by individuals wronged from seeking justice through the courts. Absent knowledge of how the executive wields its authority, neither facial nor as-applied challenges may be brought to limit government overreach. Civil litigation also may be severely constricted, resulting in the failure to rectify a wide range of grievances ranging from breach of contract and environmental damage, to wrongful death and personal injury. The cost of cloaking how power is exercised is borne in litigation, civic engagement, and public debate. “Official” interpretations may go unchallenged even as individuals with access to information increase their power within the executive and vis-à-vis the other branches and citizens. To the extent that information-secrecy bleeds over into the other branches, attempting to bind their actions, it undermines the other branches’ ability to perform their constitutional functions. Third, secret law centers on efforts to hide the law. Secrecy here threatens the structure of the state itself. It has a profound impact on the rule of law even as it augments the power of executive agencies. Fourth, adjudicatory secrecy masks the administration of justice. It impacts the introduction of evidence, proceedings, and publication of rulings. It affects the public’s right to participate in the judicial process and to learn from it. Judges may hold trials in camera, or ex parte, increasing the potential for poor decision-making. It may conceal judicial decisions, undermining rights central to the liberal, democratic state. Like secret law, this is a particularly pernicious form of obfuscation. The reason, however, is slightly different than that offered in relation to the courts: as an executive act, it affects separation of powers and the protection of rights
CACs and Doorknobs
Get PDFIn response to debt crises, policy makers often feature Collective Action Clauses (CACs) in sovereign bonds among the pillars of international financial architecture. However, the content of official pronouncements about CACs suggests that CACs are more like doorknobs: a process tool with limited impact on the incidence or ultimate outcome of a debt restructuring. We ask whether CACs are welfare improving and, if so, whether they are pillars or doorknobs. The history of CACs in corporate debt suggests that CACs can be good, bad or unimportant depending on their vulnerability to abuse and the available alternatives, including bankruptcy and debt exchanges. The history of CACs in sovereign bond workouts is recent and thin. Without restructuring data, the empirical literature has focused on the ex-ante (pricing) effects of sovereign CACs. To the extent that CACs leave borrowing costs unchanged or even lower them, they are likely to be welfare improving. But the magnitude of the welfare effects cannot be inferred from these studies. Based on the evidence so far, we conjecture that sovereign CACs are like doorknobs: useful, but perhaps not essential. To date, there is no evidence of abuse of the sort observed in U.S. corporate bond restructurings in the 1920 and 1930s. The bulk of pricing studies suggests that any increases in borrowing costs are small. On the other hand, debt exchanges using transactional techniques other than CACs have had a decent track record, suggesting that CACs are not the only way to resolve a debt crisis in the absence of a treaty-based bankruptcy alternative. Future empirical work should focus on how CACs perform in debt restructuring rather than on their ex ante effects
Living, Aging, and Dying in Healthy and Just Societies: Life Lessons From my Father
Get PDFMy father passed away at 102 years old. He lived, aged, and died well. But that is rare in the United States and globally. The World Health Organization defines palliative care “throughout the life course” as improving quality of life for patients and families and relieving pain and suffering, while paying special attention to physical, psychosocial, and spiritual functioning. That’s the global vision, but then there’s the reality. Palliative care, in practice, has been little more than pain relief at life’s end—and in much of the world, not even that.
We need to reimagine palliation, embracing a communal or relational ethics of caring for the whole person, embedded in families and communities. What would healthy living, aging, and dying in a just society look like
AEDPA as Forum Allocation: The Textual and Structural Case for Overruling \u3cem\u3eWilliams v. Taylor\u3c/em\u3e
Get PDFIn Williams v. Taylor, the Supreme Court read a section of the Anti- Terrorism and Effective Death Penalty Act (AEDPA) to change the long-prevailing de novo standard of review of federal habeas petitions by state prisoners. In holding that Congress had denied the lower federal courts the power to grant habeas relief to prisoners in custody pursuant to wrong but reasonable state court decisions, the Court departed from the provision’s text and relied instead on its perception of a generalized congressional purpose to cut back on habeas relief and on the non-redundancy canon of statutory construction. On both scores, the minority opinion had the better argument. Moreover, both opinions overlooked legislative history strongly supporting the conclusion that Congress did not intend to change the standard of review. The case for reading the provision as requiring a departure from the well-established standard of review was thus remarkably weak.
Even if the support for the holding had been stronger, however, the Court should have rejected such a reading for a reason considered by neither opinion: under the majority’s interpretation, the provision allocates federal jurisdiction over the relevant cases in a highly dysfunctional manner. AEDPA (as construed in Williams) does not prohibit all federal courts from granting relief to state prisoners convicted pursuant to wrong but reasonable state court decisions. Had it done so, it would have raised serious constitutional issues. Instead, the statute leaves it to the Supreme Court to review state court criminal convictions for such errors. But allocating this role to the Supreme Court today makes little sense. Precedent and principle support judicial resistance to interpretations of jurisdictional statutes that produce such dysfunctional allocations of judicial power. The Court should reverse Williams at its earliest opportunity. Pending such reversal, the Court should grant review of at least some allegedly “wrong but reasonable” state court convictions in order to vindicate the liberty interests of state prisoners who would not be in custody had those precedents been properly applied and to protect its precedents requiring the reversal of convictions infected with non- harmless constitutional errors
International Taxation in an Era of Digital Disruption: Analyzing the Current Debate
Get PDFThe “taxation of the digital economy” is currently at the top of the global international tax policymaking agenda. A core claim some European governments are advancing is that user data or user participation in the digital economy justifies a gross tax on digital receipts, new profit attribution criteria, or a special formulary apportionment factor in a future formulary regime targeted specifically at the “digital economy.” Just a couple years ago the OECD undertook an evaluation of whether the digital economy can (or should) be “ring-fenced” as part of the BEPS project, and concluded that it neither can be nor should be.
Importantly, concluding that there should be no special rules for the digital economy does not resolve the broader question of whether the international tax system requires reform. The practical reality appears to be that all the largest economies have come to agree either that a) there is something wrong with the taxation of the “digital economy,” or b) there is something more fundamentally wrong with the structure of the current international tax system given globalization and technological trends.
This paper is intended as a limited exploration of the second (or third, or fourth) best. It analyzes three policy options that have been discussed in general terms in the current global debate. First, I consider whether “user participation” justifies changing profit allocation results in the digital economy alone. I conclude that applying the user participation concept in a manner that is limited to the digital economy is intellectually indefensible; at most it amounts to mercantilist ring-fencing. Moreover, at the technical level user participation faces all the same challenges as more comprehensive and principled proposals for reallocating excess returns among jurisdictions. Second, I consider one such comprehensive international tax reform idea, loosely referred to by the moniker “marketing intangibles.” This idea represents a compromise between the present transfer pricing system and sales or destination-based reforms to the transfer pricing regime. I conclude that splitting taxing rights over “excess” returns between the present transfer pricing system and a destination-based approach is complex, creates new sources of potential conflict, and requires relatively extensive tax harmonization. This conclusion applies equally to user participation and marketing intangibles. If such a mechanism were nevertheless pursued, I suggest that a formulary system for splitting the excess return is the most manageable approach. Third, I consider “minimum effective taxation” ideas. I conclude that, as compared to the other two policy options discussed herein, minimum effective taxation provides a preferable path for multilateral cooperation
On the Values of Words
Get PDFMary Norris\u27 Between You and Me: Confessions of a Comma Queen and Kory Stamper\u27s Word by Word: The Secret Life of Dictionaries use observations about language as a touchstone for a nuanced examination of deeper truths about language, culture, and law in a changing world. In so doing, they point to deeper truths about the use of language and its consequences. Law students, lawyers, and law professors will benefit from journeying with Norris and Stamper towards the goal of crafting prose that is clear, accurate, and inclusive. In particular, the legal community will benefit from the books\u27 efforts to define consistent, binding linguistic rules and the books\u27 reflections on the consequences of language as a medium for conveying law
Ending Pandemics: US Foreign Policy to Mitigate Today’s Major Killers, Tomorrow’s Outbreaks, and the Health Impacts of Climate Change
Get PDFEvery U.S. President in recent decades has had to respond to at least one pandemic disease. Political leadership has proven decisive. In the coming years, U.S. foreign policy will face at least three inter-related issues: today’s major pandemics of AIDS, TB, and Malaria; future outbreaks with the potential to become pandemics; and rising risk from infectious diseases associated with climate change. A review of epidemiologic data shows global progress on each issue is threatened. A coordinated U.S. effort, across agencies and engaged with national and multilateral partners, could save lives and address significant foreign policy interests. Such an effort could boost economic prosperity by reducing disease-related lost productivity, which we estimate at $1.7 trillion, with returns to investment in pandemic-related global health efforts averaging 17–20 to 1. Foreign policy focus on pandemics could also address gender and social inequalities and support climate adaptation and mitigation. Pandemic-related global health spending is 0.19% of the U.S. budget—a figure that has been flat in recent years even with growing needs and significant potential gains from investment