3320 research outputs found
Sort by
Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate
Get PDFThis Essay explores the conceptual structure of the great debate about “originalism” and “living constitutionalism.” The core of the great debate is substantive and addresses the normative question, “What is the best theory of constitutional interpretation and construction?” That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This Essay advances a metalinguistic proposal for classifying theories as originalist or living constitutionalist and suggests that some constitutional theories are hybrids, combining elements of both theories
Human Rights for Health across the United Nations
Get PDFThe United Nations (UN) plays a central role in realizing human rights to advance global health. Looking beyond state obligations, the UN has called on all its specialized agencies to mainstream human rights across all their activities. With globalization compelling these UN institutions to meet an expanding set of global challenges to underlying determinants of health, human rights are guiding these international organizations in addressing public health. These international organizations within the UN system are actively engaged in implementing health-related human rights—in both their mission and their actions to carry out that mission. Through this mainstreaming of human rights, global health institutions have embraced human rights treaty obligations as a framework for global governance. Given the dramatic development of human rights law through the UN and the parallel proliferation of UN institutions devoted to global health and development, there arises an imperative to understand the implementation of human rights in global health governance. This special section analyzes the evolving UN focus on health and human rights in global governance, examining an expansive set of UN institutions that employ human rights in responding to public health challenges in a rapidly globalizing world.
To understand the ways in which human rights are implemented, this special section examines the role of institutions across the UN system in the realization of human rights for public health. Drawing from our recent Oxford University Press volume on Human Rights in Global Health: Rights-Based Governance for a Globalizing World, this special section brings together several of the contributors to analyze ongoing efforts to reform UN institutions to mainstream human rights. These contributors—from academia, nongovernmental organizations, and the UN system—explore (1) the foundations of human rights as a framework for global governance, (2) the work of UN organizations across a range of health-related human rights, (3) the influence of rights-based economic governance on public health, and (4) the advancement of health through UN human rights institutions. Looking beyond the chapters in Human Rights in Global Health, this special section examines how international institutions are changing to meet the Sustainable Development Goals (SDGs), with sweeping implications for the mainstreaming of human rights for health across the UN
Wealthy Countries Should Share Vaccine Doses Before It Is Too Late: The Greater Good Depends on Ending the Pandemic Everywhere
Get PDFThe world is on the brink of failing a critical test, which is whether the international community is willing or able to end a global pandemic without leaving anyone behind. Wealthy countries have bought up vast vaccine supplies, leaving poorer ones with extreme scarcity. An international initiative known as the COVID-19 Global Vaccine Access Facility (COVAX) aims to distribute vaccines widely and equitably, but is not only short of funds. Even if it reaches its 2021 target, COVAX will reach only a small portion of lower-income countries’ populations this year.
Along with moral demands of equitable global distribution, wealthy countries have deep humanitarian reasons, as well as economic, geostrategic and, critically, health reasons for equitable distribution, as without global protection, no country is safe from COVID-19. Wealthy countries should vastly expand their efforts beyond present COVAX support to enable far more equitable global distribution.
First, they should reallocate a portion of the doses they have secured for themselves – beyond excess doses to include those that they were going to use for their own populations – particularly as the United States and Europe get their own surges under control, during which time they are also vaccinating vulnerable populations. They should accept slower herd immunity for themselves to enable the world to move at a more equal pace in protecting national populations. Second, they should commit at least 2% of COVID-19 spending to response and recovery in low- and middle-income countries, amounting to $260 billion to-date, with more to follow. This would cover funding for accelerating distribution of vaccines, therapies, and diagnostics globally and provide vital humanitarian and social protection funds. Third, wealthy countries should ensure equitable distribution domestically and that vulnerable populations are quickly protected globally, including internally displaced people, asylum seekers, refugees, and stateless people. And fourth, they should work with the World Health Organization and other countries to spearhead and fund a global facility, with binding rules, for the equitable distribution of vaccines, therapeutics, and diagnostics
Capitalizing on Healthy Lawyers: The Business Case for Law Firms to Promote and Prioritize Lawyer Well-Being
Get PDFThis Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly as many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made on moral and humanitarian grounds, largely have been ignored; in fact, over the years the pervasiveness of mental health and addiction issues within the profession has persisted, if not increased. This Article argues that these moral- and humanitarian-based calls for change have gone unheeded because law firms have not had financial incentives to do so. In making the business case for change, this Article argues that systemic changes designed to support and resources to lawyers will avoid costs associated with lawyer mental health and addiction issues and, more importantly, create efficiencies that will increase firms’ long-term financial stability and growth. It demonstrates that this business case is especially strong now in light of not only societal and generational factors, but changes within the profession itself well. As firms have begun to take incremental steps to promote lawyer well-being, lasting and meaningful change will further benefit firms\u27 collective bottom lines as it will improve: (i) performance, as clients are demanding efficiency in the way their matters are staffed and billed; (ii) retention, as that creates efficiencies and the continuous relationships demanded by clients; and (iii) recruitment, particularly as younger Millennial and Generation Z lawyers—who prioritize mental health and well-being—enter the profession
Fighting Novel Diseases amidst Humanitarian Crises
Get PDFHumanitarian crises are becoming more prevalent and, frequently, more complex, in zones of mis-governance, lack of government presence, and even active conflict, marked by public mistrust and insecurity. The WHO and other health emergency responders lack the capacities and mandate to adequately respond. The current Ebola outbreak in an area of an active insurgency in the Democratic Republic of the Congo is just such a crisis. The State Department has banned U.S. personnel from the outbreak zone due to safety concerns, leaving the population feeling abandoned, potentially increasing the threat to the few brave health workers who remain.
We need is to rethink health emergency response during complex crises and devise new strategies. We offer a blueprint for responding to health emergencies amidst complex humanitarian crises. This blueprint includes peacekeepers who have the mandate and modalities fit for the purpose of quelling a health emergency; “smart” diplomacy to negotiate with belligerents and community members to ensure health and humanitarian worker safety; and deploying all needed health, security, and diplomatic assets. We also call for international development assistance for health, including to support states in developing core public health capacities, creating inclusive health systems, and meeting other need like clean water and nutritious food. Political actors will need to assume their responsibilities if humanitarians and health workers are to carry out theirs
All Balls and No Strikes: The Roberts Court’s Anti-Worker Activism
Get PDFFor decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights.
In 2012, I traced how the Roberts Court paid scant attention to the integral role private enforcement plays in various regulatory frameworks in which given substantive laws operate. By reducing or eliminating mechanisms of private enforcement, I argued, entire swaths of substantive law would go woefully under-enforced. Since that time, the Roberts Court’s civil justice and procedural jurisprudence—jurisprudence that has brought about systematic retrenchment of substantive rights—reveals that the Roberts Court is not so much inattentive to the exigencies of various regulatory frameworks. Instead, the Roberts Court jurisprudence tends to reveal an affirmative deregulatory aim.
Far from merely calling balls and strikes, and in opinions involving questions as varied as ones about class-action rule interpretation, the permissibility of collective action waivers in arbitration agreements, the ability to opt out of collective bargaining dues on First Amendment grounds, standing, and others, the Roberts Court has achieved sweeping deregulation in the past decade. As has been traced in the literature, these deregulatory effects have been particularly pronounced in the area of consumer law. Moreover, the deregulatory effects for the underlying substantive regimes have often been achieved through somewhat indirect, procedural decision-making, but those effects have been almost as significant as if the Court had simply re-written the particular rights-bearing statutes.
During October Term 2017, the Court moved beyond consumer law and ramped up its efforts to effectuate deregulation of employment law. Whatever protections workers have enjoyed throughout our nation’s history have been secured in large part through private enforcement. And to be sure, on their faces, critical workplace protection laws like Title VII and the Fair Labor Standards Act (“FLSA”)—both of which rely almost exclusively on private litigation for their effectuation—remain completely intact. However, in three critical (but less-blockbuster-than-Masterpiece Cakeshop) cases—Janus v. American Federation of State, County, and Municipal Employees, Epic Systems v. Lewis, and Encino Motorcars—the Court in back-to-back 5-4 rulings stripped workers of mechanisms to pursue their rights against employers who commit wrongs in the workplace. Both history and present experience teach us that the Court’s recent opinions will help eliminate the regulatory apparatus for workplace injury, and private employers will enjoy increased ability to essentially rewrite their obligations under substantive law through procedural vehicles.
This essay proceeds as follows: Part A traces the Court’s employment law jurisprudence from October Term 2017. Part B discusses the regulatory consequences of these opinions and argues that the Court’s opinions this past term reflect political commitments that favor and disfavor certain types of claims and claimants
From Protecting Lives to Protecting States: Use of Force Across the Threat Continuum
Get PDFThe increasing prominence in recent years of non-international armed conflicts that extend across state borders has strained the traditional legal categories that we use to regulate state use of force. Simultaneous with this phenomenon has been growing acceptance that human rights law and international humanitarian law should co-exist, with the former informing interpretations of the latter to varying degrees. Scholars continue to debate vigorously the implications of these developments and how these bodies of law should interact. As Kenneth Watkin’s book Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict observes, however, commanders have no choice but to navigate these ambiguities and attempt to reconcile these tensions on the operational level as they engage in hostilities.
Watkin’s magisterial book can be seen both as a work of operational law and a major scholarly treatment of the law governing the use of force. It provides detailed accounts of how situations arise on the ground that evade easy classification in terms of our existing conceptual and legal categories. At the same time, it furnishes a valuable framework for analyzing the features of such operations that are relevant in assessing how force should be used in particular scenarios. Finally, Watkin offers a set of principles for both operational law and broader policy decisions to help navigate the complex terrain of modern security challenges.
Watkin argues that the twenty-first century approach to conflict must be “holistic” in nature. On the one hand, it must it must acknowledge “the simultaneous application of humanitarian and human rights law,” and the greater influence of the latter in shaping perceptions of the legitimacy of violence. On the other hand, it must appreciate that “the altered security environment of this century has witnessed a definite move away from looking at conflict itself as being uniquely conventional or unconventional,” as transnational non-state organized armed groups have emerged that do not resemble traditional armed forces.
This review essay describes the main ideas in Watkin’s rich and comprehensive analysis. It then focuses in more detail on two of his suggestions. The first is that state forces should presumptively operate under law enforcement rules until this is insufficient to meet a threat, even in the course of an armed conflict. This reflects the incorporation of human rights principles as a default policy even when more permissive rules on use of force are available. The second suggestion is that certain hostile engagements with non-state forces may appropriately be characterized as armed conflicts of limited duration, governed by international humanitarian law. These two proposals reflect his view that characterization of the nature of hostilities should depend upon facts on the ground, specifically the nature of the means that states must use in order effectively to deal with a threat.
I then discuss whether this approach should lead to assessments of state use of force that rely on contextual analysis of the weight of the interests at stake in a given situation, rather than on classification of hostilities in one of our two traditional main legal categories. While Watkin does not take this step, I analyze the work of others who make a cogent argument that we should. Ultimately, I conclude that our existing imperfect legal framework is preferable to a purely contextual approach, because of the radically different moral universes that animate human rights law and international humanitarian law
The Effects of Shareholder Primacy, Publicness, and “Privateness” on Corporate Cultures
Get PDFThere is widespread belief in both scholarship and business practice that internal corporate cultures materially affect economic outcomes for firms. In turn, there is also a growing belief that corporate governance arrangements materially affect corporate cultures. If this is true, it suggests an intriguing three-link causal chain: governance choices influence corporate performance, at least in part via their effects on internal culture. This essay, written for the “Berle XI” symposium, explores that possibility. This subject is important to lawyers and legal scholars because of the symbiotic nature of law and governance, with an increasing risk of enhanced corporate criminal and civil liability when cultures are judged to be deficient. Finding the right place for culture in governance is a heavy lift. To this end, the first part of the essay introduces the battle over corporate cultures as part of a broader contestation about primacy in corporate governance, offering a perspective on the meaning of corporate culture, its place in political debates over corporate responsibility, and its usefulness to corporate law. The first part also tries to define with more clarity the differences between the cultural norms of shareholder primacy and publicness. The second part turns the reader’s attention to the overwhelmingly diverse scholarly perspectives on corporate culture and the place of corporate culture within the overarching canopy of social culture. The essay then moves on to ask about the work being done by corporate culture in terms of both law and governance, and the extent to which this can or should be thought of in functionalist terms. Then comes the main pay-off: an assessment of arguments in light of all the foregoing about the cultural causes and effects about shareholder primacy, publicness and “privateness.” Suppose managerialism triumphed in the governance wars so as to gain its desired level of autonomy from shareholder pressures for boards and managers. Would we then expect to see a cultural shift inside corporations toward greater honesty and civil engagement, and if so why? If not, what then? The essay concludes with a closer look at the politics surrounding the corporate culture wars
One-Legged Contracting
Get PDFThis response to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019), makes three broad points. It criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. It argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be cooperatively communicated. And it argues that their proposed enforcement standard would in practice severely limit freedom of contract and likely reduce consumer welfare. There is a good argument that the law of contract requires updating to take account of new technologies of consumer contracting. But Kar and Radin’s proposed reform does not address the core risks to consumers, and would quite possibly do more harm than good
Contractual Communication
Get PDFIn this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar and Radin’s Shared Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the Response briefly reflects on the significance of Kar and Radin’s project