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An Independent Review and Accountability Mechanism for the Sustainable Development Goals: The Possibilities of a Framework Convention on Global Health
No full textThe Framework Convention on Global Health (FCGH), a proposed global treaty to be rooted in the right to health and aimed at health equity, could establish a nuanced, layered, and multi-faceted regime of compliance and accountability to the right to health. In so doing, it would significantly strengthen accountability for the health-related Sustainable Development Goals (SDGs), which it would encompass. Legally binding, the FCGH could facilitate accountability through the courts and catalyze comprehensive domestic accountability regimes, requiring national strategies that include transparency, community and national accountability and participatory mechanisms, and an enabling environment for social empowerment. A “Right to Health Capacity Fund” could ensure resources for these strategies. Inclusive national processes could establish targets, benchmarks, and indicators consistent with FCGH guidance, with regular reporting to a treaty body, which could also hear individual cases. State reports could be required to include plans to overcome implementation gaps, subjecting the poorest performers to penalties (e.g., restrictions on assuming global health leadership positions) and targeted capacity building measures. Regional special rapporteurs could facilitate compliance through regular country visits and respond to serious violations. And reaching beyond government compliance, from capacity building to the courts and contractual obligations, the FCGH could establish nationally enforceable right to health obligations on the private sector
A Constructive U.S. Counter to EU State Aid Cases
Get PDFU.S. Treasury officials and members of Congress from both parties have expressed concern that the European Commission’s current state aid investigations are disproportionately targeting U.S.-based multinational enterprises. At the same time, a Treasury official recently suggested in congressional testimony that there are limits to what Treasury can do beyond strongly expressing its concerns to the commission. In that testimony, Treasury’s representative hinted at two specific pressure points: whether the state aid investigations could undermine U.S. tax treaties with EU member states; and whether any assessments paid by the foreign subsidiaries of U.S. MNEs as a result of state aid investigations would be creditable for U.S. income tax purposes
Foreword: Why Popular Sovereignty Requires the Due Process of Law to Challenge Irrational or Arbitrary Statutes
Get PDFSo-called “substantive due process” has long been criticized progressives and conservatives as a contradictory interpretation of the Due Process Clauses, and one that undermines the popular sovereignty of We the People to govern themselves. In this Foreword, I explain why an individual conception of We the People, leads to a “republican” conception of popular sovereignty that requires a neutral magistrate to adjudicate whether a statute restricting the liberties of the We the People is within the just powers of a legislature to enact. Because a measure that is ultra vires is not truly “a law,” enforcing it against a fellow citizen and joint sovereign so as to deprive that person of his or her “life, liberty or property” violates what should be called the Due Process of Law Clauses. While the proper ends of Congress’s powers are enumerated in the text of the Constitution, the police powers of the states are more general. Still, the exercise of such powers to restrict the privileges or immunities of citizens in an “irrational or arbitrary” manner is beyond the just powers that a sovereign people can be presumed or supposed to have delegated to their servants in the legislature. Courts, who are also servants of the We the People, readily perform this type of evaluation when a “fundamental right” or “suspect class” is affected by the exercise of the police power, so such judicial engagement is well within their competence
The Luxembourg Effect: Patent Boxes and the Limits of International Cooperation
Get PDFThis article uses patent boxes, which reduce taxes on income from patents and other IP assets, to illustrate the fact that the jurisprudence of the European Court of Justice has a longer reach than has previously been recognized. This article argues that, along with having effects within the European Union, the ECJ’s decisions can also have effects on countries outside of the EU. In the direct tax context, the ECJ’s jurisprudence has hampered the ability of both EU and non-EU countries to police international tax avoidance.
In 2015, the Organisation for Economic Co-operation and Development (OECD) proposed restrictions on patent boxes that were designed to limit income-shifting opportunities. As this article points out, these restrictions are weaker than they could have been due to EU legal constraints. Although the majority of countries involved in the OECD’s work on patent boxes were not EU Member States, they were all constrained by the ECJ’s permissive definition of tax avoidance. This article argues that the tax jurisprudence of the ECJ placed downward pressure on international tax avoidance standards and that this in turn shows that countries both within and without the European Union are losing the ability to prevent international tax avoidance to the degree that would have been possible in the absence of the ECJ’s tax jurisprudence. This article refers to this downward pressure as the Luxembourg effect. This effect is even more important in the context of the United Kingdom’s “Brexit” vote to leave the European Union since it highlights that a vote to be free of EU law may not have the desired effect if even non-EU countries are subject to the consequences of the ECJ’s jurisprudence
On the Uneven Journey to Constitutional Redemption: The Malaysian Judiciary and Constitutional Politics
Get PDFThis article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s tentative movement toward a more rights-oriented approach followed by its more recent retreat in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must exhibit greater willingness to assert its commitment to constitutional supremacy and the rule of law
The Contested Value of Normative Legal Scholarship
Get PDFLegal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may be scholarship, but it’s not legal because it’s not normative enough.
In this article, I address one side of this issue, what I call the anti-normativity complaint: to wit, that legal scholarship is somehow not “true scholarship” because so much of it is overtly normative. Legal scholarship, according to this strand of criticism, isn’t true scholarship because of the dominance of “ought” statements: if it aims to make the law, or the world law governs, better, and aims to do so through using legal materials and a legal methodology, it isn’t scholarship. So, we shouldn’t do it.
After analyzing various contours of the anti-normativity critique, I make the case that legal scholarship is and should be about what justice requires. It therefore must be normative. And to the degree that justice is itself a product of our passion, it must also, therefore, be impassioned. This form of legal scholarship has great social value. It quite often influences not only our law, but also our political environment and the world of ideas in the university. Further, it’s not done anywhere except in law schools. If we forgo this work, our worlds, not only the legal world, but our social and cultural and political worlds, will be the worse for it
The Regulatory State in the Information Age
Get PDFThis Article examines the regulatory state through the lens of evolving political economy, arguing that a significant reconstruction is now underway. The ongoing shift from an industrial mode of development to an informational one has created existential challenges for regulatory models and constructs developed in the context of the industrial economy. Contemporary contests over the substance of regulatory mandates and the shape of regulatory institutions are most usefully understood as moves within a larger struggle to chart a new direction for the regulatory state in the era of informational capitalism. A regulatory state optimized for the information economy must develop rubrics for responding to three problems that have confounded existing regulatory regimes: (1) platform power — the power to link facially separate markets and/or to constrain participation in markets by using technical protocols; (2) infoglut — unmanageably voluminous, mediated information flows that create information overload; and (3) systemic threat — nascent, probabilistically-defined harm to be realized at some point in the future. Additionally, it must develop institutions capable of exercising effective oversight of information-era activities. The information-era regulatory models that have begun to emerge are procedurally informal, mediated by networks of professional and technical expertise that define relevant standards, and financialized. Such models, however, also have tended to be both opaque to external observation and highly prone to capture. New institutional forms that might ensure their legal and political accountability have been slow to develop
A Deer in Headlights: The Supreme Court, LGBT Rights, and Equal Protection
Get PDFIn this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have not generated a replacement paradigm for a society that is radically more diverse than the United States was at that time. The second doctrinal problem is that the discourse of Equal Protection law has morphed into judgmentalism, tending to infuse analysis of classifications with weighing of whether a particular group of persons deserves judicial protection against majoritarian legislation. Finally, a theoretical issue has long plagued Equal Protection law: the role of ideology. Ostensibly irrelevant, it has nonetheless crept into the case law through references to, e.g., “white supremacy,” but has never been fully and properly analyzed.
The role of ideology and its relationship to the original meaning argument advanced by Professor Eskridge generates my primary critique of his claim. While the dynamics of gender and sexuality can be separated in many instances, I argue that they are inextricably intertwined in the ideological foundations for discrimination based on sexual orientation (though not always in the manifestations of such discrimination). Recognizing this melded conceptualization would enrich equality principles more than reading a sexual orientation distinction alone into the scope of the original meaning of the Fourteenth Amendment, and a strong doctrinal claim of sex discrimination is available for the Court to invoke
Why Healthy Behavior Is the Hard Choice
Get PDFOur society is structured to encourage unhealthy diets and physically inactive lifestyles, which are key risk factors for chronic diseases including diabetes, heart diseases, and cancers. We are bombarded with advertisements for hyperprocessed foods laden with saturated fat, salt, sugar, and refined carbohydrates, “low-fat” foods often contain high amounts of sugar and salt, and parks and recreation spaces are often inaccessible or unsafe.
Four simple ideas - taxes on unhealthy products, product reformulation, improving the informational environment, and increasing healthy food accessibility - could make healthy behaviors the “default” choice for most consumers. First, taxes on unhealthy products, such as sugary beverages, increase prices and reduce demand, especially among youth and low-income groups. Revenue generated through taxes could be earmarked to increase access to and affordability of healthier alternatives, such as subsidies for fruit and vegetables. Second, product reformulation regulations improve the nutritional value of food and beverage products by requiring companies to gradually reduce fats, sugars, and sodium in packaged foods. Third, rules requiring clear and comprehensive nutritional information help consumers to select healthier products. Some jurisdictions are considering going further, by requiring explicit warning labels on unhealthy products such as sugary drinks. In addition to informing consumers, advertising restrictions minimize exposure to aggressive industry advertising, which often targets children. Finally, zoning and licensing laws limiting fast-food outlets and incentivizing the sale of healthier products promote accessibility and affordability of healthy, nutritious food.
In America, and throughout the world, perverse societal structures encourage unhealthy diets and physically inactive lifestyles. With obesity reaching epidemic levels and chronic diseases posing real harms to families, the health system, and productivity, it is time to structure s
Why Healthy Behavior Is the Hard Choice
Get PDFOur society is structured to encourage unhealthy diets and physically inactive lifestyles, which are key risk factors for chronic diseases including diabetes, heart diseases, and cancers. We are bombarded with advertisements for hyperprocessed foods laden with saturated fat, salt, sugar, and refined carbohydrates, “low-fat” foods often contain high amounts of sugar and salt, and parks and recreation spaces are often inaccessible or unsafe.
Four simple ideas - taxes on unhealthy products, product reformulation, improving the informational environment, and increasing healthy food accessibility - could make healthy behaviors the “default” choice for most consumers. First, taxes on unhealthy products, such as sugary beverages, increase prices and reduce demand, especially among youth and low-income groups. Revenue generated through taxes could be earmarked to increase access to and affordability of healthier alternatives, such as subsidies for fruit and vegetables. Second, product reformulation regulations improve the nutritional value of food and beverage products by requiring companies to gradually reduce fats, sugars, and sodium in packaged foods. Third, rules requiring clear and comprehensive nutritional information help consumers to select healthier products. Some jurisdictions are considering going further, by requiring explicit warning labels on unhealthy products such as sugary drinks. In addition to informing consumers, advertising restrictions minimize exposure to aggressive industry advertising, which often targets children. Finally, zoning and licensing laws limiting fast-food outlets and incentivizing the sale of healthier products promote accessibility and affordability of healthy, nutritious food.
In America, and throughout the world, perverse societal structures encourage unhealthy diets and physically inactive lifestyles. With obesity reaching epidemic levels and chronic diseases posing real harms to families, the health system, and productivity, it is time to structure s