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Climate Exactions
Get PDFThis essay presents a legal device by which local governments can put a price on climate emissions and loss of resiliency generated by new real estate development. Local governments commonly impose fees, a type of monetary exaction, on new development to offset public costs that such development will impose. This Essay argues that monetary fees offer significant potential as a tool to help local governments manage land development’s contribution to climate change. Such “climate exactions” can put a price on the carbon emissions from new development and also on development that reduces the natural resiliency of the jurisdiction to the effects of climate change, such as sea-level rise. In addition to describing how such climate exactions might work, the Essay argues that using exactions to address climate concerns is consistent with the United States Supreme Court’s constitutional takings framework
Evaluating Joint Ventures: Economic Analysis Checklist
Get PDFThis short article (for a symposium on joint ventures) provides practitioners and law professor with a 20 question checklist to guide the competitive effects analysis of the formation of a joint venture and the specific restraints and conduct of the venture. The questions mainly focus on ventures among actual or potential competitors, though some of the questions also are relevant for ventures involving complementary product firms. The questions concern potential competitive harms, potential competitive benefits, and the determination of net competitive effects. While this sequencing follows the standard burden-shifting formulation of the rule of reason decision process, the article notes that this sequencing should not be approached rigidly. A finding of a lack of efficiency benefits might suggest that the motivation of the JV is to achieve and exercise market power to the detriment of consumers, thereby supporting an inference of harm. Moreover, under a quick look to condemn standard, efficiency benefits are examined first, albeit with a possibly lower burden of proof placed on the venture to justify its formation and restraints
Creating Space for Silence in Law School Collaborations
Get PDFLaw school programs are increasingly expanding collaborative experiences for their students. In many clinical programs, collaboration -- through team pairings and group work – has been the norm, and gradually, collaborative work is being developed throughout the doctrinal law school curriculum. This trend fits within a broader societal emphasis on a collaborative model of working and learning. In both professional and educational settings, collaboration is viewed as critical to the success of ideas and products. Learning theory consistently identifies learning as being “inherently social” and best retained when engaged in with others. And, collaboration can substantially benefit the final work product and dramatically increase professional and educational satisfaction. However, when the collaborative process is not engaged in with intention and when not open to a variety of practices, collaboration can inhibit learning, productivity, and creativity. Research consistently finds that individuals who have an opportunity to consider problems on their own before collaborating outperform those whose ideas are generated exclusively in a group setting. Despite this, many collaborations value a team process that tends to isolate and ignore individuals who do not speak up quickly or easily, many with introverted personality styles, as well as others who do not fit within the “Extrovert Ideal.” The Extrovert Ideal rests on an assumption that an extrovert’s approach to group work, learning, and decision-making is the standard towards which all individuals should strive. This assumption may be particularly problematic for law students and lawyers who, as a group, include a higher percentage of individuals who identify as introverted than the general population. This article considers whether law faculty are giving enough thought to the collaborative learning opportunities that are becoming a new normal in legal education and the legal profession. It considers how as currently executed, law school collaborations may not maximize student learning because they are grounded in a process that often interferes with the creation of ideas and the learning and environmental preferences because of rules that work best for only some -- not all -- students. This article concludes by offering concrete collaborative methods that allow space for intentional silence and reflection, and suggestions for helping students identify their own collaborative identity
Out-Beale-ing Beale
Get PDFIn response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”], EEOC v. Arabian American Oil Co. (Aramco), Larry Kramer described the presumption as an anachronism—a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then. The title of his scathing article, Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement of Conflict of Laws, whose since-discredited theories underlay that Restatement’s approach to choice of law. In the cases since Aramco, the Court has strengthened and expanded the presumption. With its decision in RJR Nabisco v. European Community, it is fair to say, the Court has out-Beale’d Beale
The Affordable Care Act: Moving Forward in the Coming Years
No full textPresident Barack Obama signed the Affordable Care Act (ACA) in 2010 with no Republican support. The ACA has been politically divisive ever since, with the House repeatedly voting for repeal. Earlier this year, Congress successfully passed a repeal, with the Senate using a legislative process called “reconciliation,” which requires only a simple majority for certain tax and spending bills. However, Congress failed to override a presidential veto.
President-elect Donald Trump pledged to “repeal and replace” the ACA, but would keep the most popular features: (1) guaranteed issue —health plans must enroll applicants regardless of pre-existing conditions; and (2) dependent coverage—health plans must keep dependent children on their parents plan until age 26. Although his reform package has not been announced, it will likely include health savings accounts (HSAs), cross-border insurance sales, Medicaid block grants to states, and a cap on non-economic damages.
In this Viewpoint, we examine potential reforms of the ACA through the lens of empirical evidence to find whether they are likely to be effective, particularly in ensuring access to health insurance at a reasonable cost, and in a stable insurance market. We conclude that the public has a right to expect their representatives to find common ground and adopt evidence-based policies that expand coverage at a reasonable cost
Imagining Global Health with Justice
Get PDFThis article offers a way to achieve global health with justice as a global health imperative. It is possible to have global health without justice, meaning that improvements in health outcomes could be achieved, but without a fair distribution of the benefits of good health. It is also possible to have justice without global health, where health outcomes are evenly distributed across the population but overall health is not improved. With this understanding, this article challenges current ways of understanding global health, and argues that absolute reductions in morbidity and premature mortality are not robust indicators of success in the absence of equity. Taking existing and prevailing global health narratives, this article focuses on answering two fundamental questions to address the question of how we can achieve global health with justice: What would an ideal state of global health look like? What would an ideal state of global health with justice look like? These may seem like naïve questions, but if we could answer them, we would go a long way toward a healthier and fairer world.
L’auteur propose un moyen de parvenir à la santé mondiale en prenant l’équité comme impératif mondial en matière de santé. Il est possible d’avoir la santé mondiale sans équité, ce qui signifie que des améliorations en matière de santé pourraient être obtenues, sans qu’il y ait répartition équitable des avantages d’une bonne santé. Il est également possible d’arriver à l’équité sans la santé mondiale, si les résultats de santé sont répartis uniformément sur toute la population, mais que dans l’ensemble, la santé n’est pas améliorée. Ces prémisses étant établies, l’auteur remet en question les façons actuelles de comprendre la santé mondiale, et il fait valoir qu’en l’absence d’équité, les réductions absolues de la morbidité et la mortalité prématurée ne sont pas des indicateurs précis de succès. À partir des propos qui ont cours actuellement sur la santé mondiale, l’auteur entreprend de répondre à deux interrogations fondamentales pour savoir comment nous pourrions arriver à la santé mondiale avec l’équité : À quoi ressemblerait un état idéal de santé mondiale? À quoi ressemblerait un état idéal de santé mondiale avec l’équité? Ces questions peuvent sembler naïves, mais si nous pouvions y répondre, nous aurions fait beaucoup de chemin vers un monde plus sain et plus équitable
“Settling the Question: Did Bank Settlement Agreements Subvert Congressional Appropriations Powers?” : Hearing Before The United States House of Representatives Committee on Financial Services Subcommittee on Oversight and Investigations, 114th Congress
Get PDFThe Constitution provides: ―No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . . This is not a mere technical provision but rather a fundamental element of constitutional structure.
It sounds, first, in democracy, reflecting the deep constitutional principle that the power of the purse should be vested in the most representative branch. Every dollar appropriated from the Treasury may represent a dollar of taxes, and so this principle applies to both taxing and spending
The Freedom to Marry Win: Transformation and Triumph to Celebrate, Lessons to Adapt and Apply
No full textOn September 28, 2016, Evan Wolfson, the founder and president of Freedom to Marry, the campaign that argued for the right to same-sex marriage in the United States, delivered the Annual Philip A. Hart Memorial Lecture, “The Freedom to Marry Win: Transformation and Triumph to Celebrate, Lessons to Adapt and Apply” at the Georgetown Law Center. Starting with his 1983 student thesis, “Samesex Marriage and Morality: The Human Rights Vision of the Constitution” at Harvard Law, Wolfson’s argument and successful campaign strategy was realized in the Supreme Court case Obergefell v. Hodges, where the majority opinion agreed that same-sex couples have a right to marry
Disrupting the Path from Childhood Trauma to Juvenile Justice: An Upstream Health and Justice Approach
Get PDFA groundbreaking public health study funded by the U.S. Centers for Disease Control and Prevention (CDC) and the Kaiser Foundation found astoundingly high rates of childhood trauma, including experiences like abuse, neglect, parental substance abuse, mental illness, and incarceration. Hundreds of follow-up studies have revealed that multiple traumatic adverse childhood experiences (or “ACEs”) make it far more likely that a person will have poor mental health outcomes in adulthood, such as higher rates of depression, anxiety, suicide attempts, and substance abuse. Interestingly, the original ACE Study examined a largely middle-class adult population living in San Diego, but subsequent follow-up studies have examined the prevalence of ACEs and its impact on mental health in other populations, including among people involved in the juvenile and criminal justice systems. Unsurprisingly, individuals entangled in those systems are more likely to have experienced higher numbers of these traumatic events, despite a frequent lack of access to critical mental health treatment, including the treatment necessary to address past childhood trauma. The ACEs framework for understanding health and mental health outcomes resulting from childhood trauma has received a high level of attention recently following an in-depth, multi-part series on these issues by National Public Radio (NPR) and other media.
Because the ACEs public health research shows us that events in childhood can cause “toxic stress” and have a lasting impact on the mental health of a child well into adulthood, this framework provides us with an opportunity to consider how to more effectively intervene to stop the pathway from ACEs to juvenile justice system involvement and address the related health, mental health, developmental, and legal needs of children and their families. Before a child becomes an adult facing a mental health crisis or incarceration, attorneys, doctors, and other professionals can collaborate to disrupt that fate. This Article argues for a more upstream approach to address mental health using a medical-legal collaboration, based on the experiences of the authors, a law professor and medical school professor who work together to try to improve outcomes for children who have experienced trauma and their families.
In Part I, we begin by examining the groundbreaking ACE studies, exploring the toxic stress and health and mental health outcomes that are associated with high rates of ACEs in childhood. Next, in Part II, we analyze the research revealing high rates of trauma and ACEs among populations involved in the juvenile justice system. Finally, we conclude in Part III by arguing for a more upstream public health and justice approach. We examine a particular problem in the city of Albuquerque, the largest urban area in New Mexico: children who have a particular ACE right from birth in the form of substance abuse by a household member. These infants are born with prenatal drug exposure and many experience symptoms of withdrawal in their first weeks of life, often quickly followed by an accumulation of additional forms of early childhood trauma. We discuss an approach through which the authors work to address those issues and disrupt the path from that childhood trauma to poor outcomes and juvenile justice system involvement. This approach engages attorneys with doctors and other health and developmental professionals to address ACEs among young children ages zero to three and their siblings, parents, and other caregivers. We advocate for an early, holistic, multi-generational, multi-disciplinary public health and justice approach to address ACEs early and improve the trajectory for children who have experienced childhood trauma
Do Credit-Based Insurance Scores Proxy for Income in Predicting Auto Claim Risk?
Get PDFAuto insurers often use credit-based insurance scores in their underwriting and rating processes. The practice is controversial—many consumer groups oppose it, and most states regulate it, in part out of concern that insurance scores proxy for policyholder income in predicting claim risk. We offer new evidence on this issue in the context of auto insurance. Prior studies on the subject suffer from the limitation that they rely solely on aggregate measures of income, such as the median income in a policyholder\u27s census tract or zip code. We analyze a panel of households that purchased auto and home policies from a U.S. insurance company. Because we observe the households\u27 home policies as well as their auto policies, we are able to employ two measures of income: the median income in a household\u27s census tract, an aggregate measure, and the insured value of the household\u27s dwelling, a policyholder-level measure. Using these measures, we find that insurance score does not act as proxy for income in a standard actuarial model of auto claim risk