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Is Affording Undocumented Immigrants Health Coverage a Radical Proposal?
Get PDFDuring the Democratic presidential debate on July 31, all 10 candidates raised their hands when asked if they would provide health insurance to undocumented immigrants. Among all Democratic ideas for health reform, this is least popular. A recent poll found that only 38% of respondents approve. The idea drew extensive criticism, which is understandable: Why should the United States provide health coverage for people who don’t have a legal right to be here? Extending coverage could be seen as rewarding individuals who have violated the law.
There are, however, strong reasons to afford health coverage for this population: modest economic costs, safeguarding the public’s health by curbing the spread of infectious diseases, and complying with international law that requires health coverage for migrants. Many countries fail to afford migrants equitable access to health coverage, so adopting a policy of providing undocumented immigrants on par with other residents—integrated into existing federal health insurance programs—would help the United States regain moral leadership, in line with World Health Organization (WHO) and United Nations (UN) guidelines, and potentially save money (discussed below)
World Trade and Investment Law in a Time of Crisis: Distribution, Development and Social Protection
Get PDFWorld trade and investment law is in crisis: new and progressive ideas are needed. Rules that facilitated globalization and supported global economic growth are being challenged. A system of global governance that once seemed secure is now at risk as the US ignores the rules while developing countries struggle to escape restrictions. Some want to tear global institutions and agreements down while others try desperately to maintain the status quo. Rejecting both options, we convened a group of trade and investment law experts from 10 countries South and North who have proposed ideas for a new world trade and investment law that would maintain global growth while distributing costs and benefits more fairly. This essay frames the issues and introduces the volume. We look at the impact of trade and investment law on the global distribution of resources, and pay special attention to those who have suffered from trade dislocation and to restrictions that have hampered innovative growth strategies in developing countries. This perspective shapes a progressive trade and investment law agenda that is outlined in the book and summarized here. We suggest new ways to link trade with protection for labor; measures to ensure that gains from trade are used to offset loses; new rules that can protect foreign investments without hamstringing developing governments or harming local communities; innovative procedures to allow developing countries freedom to try innovative growth strategies; and methods to cope with new products like cannabis
Race Ipsa Loquitur
Get PDFThe goal of this Article is to make the existence of invidious racial discrimination in the United States so palpable that it can no longer be denied. Part I argues that racial inequality is so pervasive, unconscious, and structural that it has simply become an assumed fixture of United States and is rarely even noticed. Section I.A describes the history of racial subordination in the United States. Section I.B invokes the concept of disparate impact to illustrate the continuing manifestations of invidious discrimination in contemporary culture. Part II describes the manner in which the culture nevertheless chooses to deny the existence of continuing racial discrimination, even in the face of such stark racial disparities. Section II. A attributes this denial to cultural biases that can be conscious, blatant, implicit, or structural. Section II.B describes the way in which the Supreme Court has invoked the doctrinal distractions of intent and racial balance to sanitize the culture’s commitment to racial stratification and divert attention from the Court’s de facto protection of white privilege. The Article concludes that meaningful racial reconciliation could be achieved in the United States only if United States culture were willing to act on a truth about its racial values that it is unlikely ever to admit
Affordable Housing: Of Inefficiency, Market Distortion, and Government Failure
Get PDFIn this essay, I examine the types of costs that are imposed on society as a whole due to the absence of a sufficient number of decent housing units that are affordable to the low-income population. These costs present themselves in relation to health care, education, employment, productivity, homelessness, and incarceration. Some of the costs are direct expenditures while others are the result of lost opportunities.
My hypothesis is that these costs are significant and offer, at the very least, a substantial offset to the cost of creating and subsidizing the operation of the necessary number of affordable housing units that are currently missing. I suggest a series of reasons why, in the face of this potentially inefficient outcome, the market/society does not produce the required units.
The essay is conceptual in nature, not empirical. I recognize the issues associated with the quantification of often opaque costs and with their causal relationship to the lack of affordable housing. It is clear, however, that the costs are sizable and the correlations are strong and therefore, I believe, the hypothesis requires empirical study
From Paris to Pittsburgh: U.S. State and Local Leadership in an Era of Trump
Get PDFStates and cities have long been leaders on clean energy and climate policy. Their work has informed development of federal policies including motor vehicle standards and the Clean Power Plan. With the election of President Trump and the increasingly severe impacts of climate change, subnational leadership has become even more important and urgent. In response, many states and cities have pledged to enact new policies to mitigate the effects of climate change and help communities adapt. This Article focuses on recent developments in subnational leadership on both climate mitigation and adaptation to demonstrate the breadth and depth of engagement by leading states and cities. It provides just some examples that illustrate how, despite the Trump Administration’s best efforts to dismantle federal environmental policies, many states and cities are fighting federal rollbacks and moving forward with their own policies to address climate change, promote a clean energy economy, and prepare for the consequences of a changing climate. Taken together, these efforts are important in keeping the United States within reach of the Paris Agreement targets. However, broader participation and meaningful federal action will be necessary to meet international commitments and avoid the most catastrophic consequences of climate change
Business and Human Rights as a Galaxy of Norms
Get PDFIn the last several years, there has been an increasing tendency to view the impacts of transnational business operations through the lens of human rights law. A major obstacle to holding companies accountable for the harms that they impose, however, has been the separate legal identity of corporate subsidiaries and of contractors in a company\u27s supply chain. France\u27s recently enacted duty of vigilance statute seeks to overcome this obstacle by imposing a duty on companies to identify potential serious human rights violations by their subsidiaries and by companies with which they have an “established commercial relationship.” Failure to engage in such vigilance can subject a company to liability for damages resulting from such failure.
This Article situates the new French duty of vigilance within a broader set of norms that can be characterized as the Business and Human Rights Galaxy. This Galaxy consists of five rings that represent standards and expectations ranging from classic enforceable “hard law” to voluntary principles generated by private parties, multi-stakeholder initiatives, and international organizations. The provisions in these rings are related in fluid and dynamic ways and exert varying degrees of gravitational influence on one another. Thus, for instance, what are conventionally regarded as forms of hard law may draw on voluntary private standards in setting expectations for behavior, and soft law norms may be incorporated into legally enforceable contract provisions between companies and their suppliers. This Article suggests that appreciation of these dynamics can furnish guidance in interpreting the novel duty of vigilance that the new French statute establishes. In particular, the common law duty of care and the United Nations Guiding Principles on Business and Human Rights can illuminate the nature and scope of the duty of vigilance. At the same time, the introduction of the new French statute into the Business and Human Rights Galaxy means that it too has the potential to influence provisions in other rings of the Galaxy
Gatekeepers, Cultural Captives, or Knaves? Corporate Lawyers Through Different Lenses
Get PDFStudying the behavior of high-status corporate lawyers is challenging. Much writing (including some of my own) addresses the risk of lawyer enabling of client misconduct by drawing from work in behavioral ethics suggesting that at least some apparent complicity is without full awareness of the impropriety. Is this naïve? The first part of this essay pushes harder on consciousness by looking more closely at the lengthy continuum—not a binary yes/no—in the awareness of wrongdoing risk as heavily influenced by the “slippery slope.” Looking at corporate lawyers’ professional responsibility through this lens has some interesting, and as far as I can tell, under-explored implications that help us understand ethical apathy as a distinctive state of mind. The essay’s second part is more hopeful: that such ethical apathy among private practitioners might be offset by greater embrace of the possibility by in-house lawyers. There has emerged in recent years a different lens for the empirical examination of corporate general counsel, using the tools of financial economics to seek correlations (and maybe causation) between identifiable lawyer characteristics and outcomes for the company in terms of (for example) its legal exposure. There is some hopeful news in this research, albeit heavily contingent on the company’s governance structure. The essay ends by suggesting that, while the effort in normative legal ethics to enlist corporate lawyers in more than a legalistic conception of gatekeeping has failed, corporate governance and corporate ethics—surprisingly, perhaps—have some potential to enable gatekeeping general counsels in a way that filters down to the demand for more ethically-sensitive outside counsel as well
Reflecting on \u3cem\u3eStraight Talk on Trade\u3c/em\u3e
Get PDFA question that motivates this essay is: What insights can we offer from legal scholarship that Dani Rodrik could take on board and put to good use?
Rodrik is an economist, but he might as well have been a lawyer in the way he builds his argument and anticipates counterarguments. I mean that as a compliment. As a bonus, he delivers the punch line with humor and grace. In his book I recognized several of the many contributions Rodrik has made: his argument for policy space and revitalization of industrial policy, the globalization trilemma, the idea and process of growth diagnostics and the idea of premature deindustrialization and the powerful challenge it presents to developing countries.
I also recognized familiar characters: hyperglobalization, the globalization cheerleaders, the economics professor who speaks with nuance and qualifications when talking about the benefits of trade to graduate students in the classroom but is completely simplistic and even disingenuous when talking to the media. Let’s call this character the “two-faced” economist. The book has many valuable ideas, but I want to focus on three themes: (1) the plurality of models, (2) fair trade and (3) the agenda for the nation-state
Critical Issues in Transportation 2019: Climate Change Resilience
Get PDFThe climate is rapidly changing, bringing more frequent and extreme floods, droughts, and heatwaves, along with stronger hurricanes and more intense wildfires. Each year brings new record-breaking weather extremes; in the first six months of 2019, for example, a record number of U.S. counties flooded. July 2019 was the hottest month ever recorded for the world as a whole (1). Climate change is also melting glaciers, reducing the amount of sea ice, and raising sea levels, bringing devastation to coastal areas. From Louisiana to Alaska, many coastal communities are forced to make difficult decisions about whether to relocate to less-vulnerable areas.
As detailed in the Fourth National Climate Assessment, these extremes pose serious threats to transportation systems, making it more difficult for these systems to provide the crucial services relied upon by individuals, communities, and other critical systems (2). There is an urgent need for decision-makers at all levels of government and in the private sector to better prepare transportation assets, systems, and workforces for a changing climate. In particular, decision-makers need better information, new tools, innovative best practices, and implementation assistance.
Last year, the Transportation Research Board (TRB) published a new edition of Critical Issues in Transportation, which identified climate change—and the need for resilience—as one of the critical issues now facing transportation (3). Critical Issues 2019 poses several key questions: how best to use climate information to improve risk-based decision-making; how to communicate adaptation successes from states and localities; how to build flexibility and adaptability into policies, designs, and standards; how to make the business case for adaptation; and how to facilitate managed retreat and discourage risky investments.
This article describes current work on building resilience to climate change impacts in which states and cities are often leading the way. It is also important to point out that, in addition to being vulnerable to climate impacts, transportation is now the largest source of greenhouse gas emissions that contribute to climate change. Therefore, immediate action is required to reduce emissions too, with states taking the lead on this work as well
Internet Utopianism and the Practical Inevitability of Law
Get PDFWriting at the dawn of the digital era, John Perry Barlow proclaimed cyberspace to be a new domain of pure freedom. Addressing the nations of the world, he cautioned that their laws, which were “based on matter,” simply did not speak to conduct in the new virtual realm. As both Barlow and the cyberlaw scholars who took up his call recognized, that was not so much a statement of fact as it was an exercise in deliberate utopianism. But it has proved prescient in a way that they certainly did not intend. The “laws” that increasingly have no meaning in online environments include not only the mandates of market regulators but also the guarantees that supposedly protect the fundamental rights of internet users, including the expressive and associational freedoms whose supremacy Barlow asserted. More generally, in the networked information era, protections for fundamental human rights — both on- and offline — have begun to fail comprehensively.
Cyberlaw scholarship in the Barlowian mold isn’t to blame for the worldwide erosion of protections for fundamental rights, but it also hasn’t helped as much as it might have. In this essay, adapted from a forthcoming book on the evolution of legal institutions in the information era, I identify and briefly examine three intersecting flavors of internet utopianism in cyberlegal thought that are worth reexamining. It has become increasingly apparent that functioning legal institutions have indispensable roles to play in protecting and advancing human freedom. It has also become increasingly apparent, however, that the legal institutions we need are different than the ones we have