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Risks, Goals, and Pictographs: Lawyering to the Social Entrepreneur
Get PDFScholars have argued that transactional lawyers add value by mitigating the potential for post-transaction litigation, reducing transaction costs, acting as reputational intermediaries, and lowering regulatory costs. Effective transactional attorneys understand their clients’ businesses and the industries or contexts in which those businesses operate. Applied to the start-up social enterprise context, understanding the client includes understanding the founders’ values, preferences, and proclivity for risk. The novel transactions and innovative solutions pursued by emerging social entrepreneurs may not lend themselves well to risk avoidance. For example, new corporate forms such as the benefit corporation are untested, yet appeal to many social entrepreneurs who wish to use a single entity to pursue dual missions. Novelty in a transaction or governance arrangement, as opposed to precedent, means that the risk of litigation or regulatory inquiry may rise. However, a lawyer—and particularly the student attorney without practice experience—may be prone to risk aversion. Lawyers are often described by themselves and by others as “conservative, risk-averse, precedent-bound, and wedded to a narrow, legalistic range of problem solving strategies.” On one hand, risk aversion can inhibit a lawyer’s ability to “think outside the box” and take the innovative approaches that their social enterprise clients need. On the other hand, a lawyer’s risk aversion may add value to a social enterprise to the extent that the lawyer can be a “sounding board to help clients balance risk-prone ideas.”
In the Social Enterprise & Nonprofit Law Clinic at Georgetown Law, student attorneys learn to practice client-centered lawyering in their representation of social enterprise clients. In this Essay, I discuss (i) plausible risk profiles of student attorneys and their social enterprise clients; (ii) a client-centered lawyering approach that deters a student attorney from projecting her own risk aversion onto her clients and allows her to act as a “sounding board” armed with legal analysis to help her client make informed decisions; and (iii) one of the counseling tools that facilitates this client-centered approach. The counseling tool—a pictograph, or visual representation that communicates three-dimensional qualitative information—dictates that the client’s preferences take priority over the student attorney’s risk profile, but also allows the student attorney to present and frame the advantages and disadvantages of a particular decision point in relation to the client’s expressed goals
Arrests as Regulation
Get PDFFor some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone—regardless of whether they result in conviction—can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors who rely on arrests—such as immigration enforcement officials, public housing authorities, employers and licensing authorities, child protective service providers, among others—routinely receive and use arrest information for their own objectives. They do so not because arrests are the best regulatory tools, but because they regard arrests as proxies for information they value, and because arrests are often easy and inexpensive to access. But when noncriminal justice actors rely on arrests, they set off a complicated and poorly understood web of interactions with the criminal justice system. Regulatory bodies and others that make decisions based on arrests can coordinate and pool resources with prosecutors and police officers, achieving a level of enforcement that neither could achieve alone, or they can make decisions that undermine important aspects of the criminal justice process. This article maps different regulatory interactions based on arrests, and illustrates the need for greater oversight over how arrests are used and disseminated outside the criminal justice system
Public health, universal health coverage, and Sustainable Development Goals: can they coexist?
Get PDFIn her 2012 reconfirmation speech as WHO Director-General, Dr. Margaret Chan asserted: universal coverage is the single most powerful concept that public health has to offer. It is our ticket to greater efficiency and better quality. It is our savior from the crushing weight of chronic noncommunicable diseases that now engulf the globe . The UN General Assembly is currently considering proposals for Sustainable Development Goals (SDGs), succeeding the Millennium Development Goals. SDGs, focusing on health, specifically includes universal health coverage (UHC) among its targets. Unquestionably, UHC is timely and fundamentally important. However, its promotion also entails substantial risks. A narrow focus on UHC could emphasize expansion of access to health-care services over equitable improvement of health outcomes through action across all relevant sectors—especially public health interventions, needed to effectively address non-communicable diseases (NCDs). WHO first endorsed UHC in its 2005 resolution on sustainable health financing, calling on states to provide access to [necessary] promotive, preventive, curative and rehabilitative health interventions for all at an affordable cost . The resolution and its UHC concept firmly and narrowly center on health insurance packages financed through pre-payment. This narrow understanding is echoed in major recent reviews of 65 empirical studies on UHC progress. The proposed SDGs also separate population-level public health measures from UHC, addressing the former as distinct targets, not under UHC. Yet, a broader understanding encompassing non-clinical measures can also be found in relevant WHO documents. Independent of UHC\u27s conceptual in-determinacy, clinical health services are an essential part of UHC, and are likely to dominate post-2015 state health system improvements. In implementing UHC, how can we ensure continued emphasis on the full spectrum of public health interventions? Unmediated, a narrow UHC focus risks that five distinct pressures prioritize expanded curative clinical services at the expense of individual and population-level health promotion, prevention, and action on social determinants of health. The risk is that this focus leads to more health-care services, but worse overall health outcomes, with less equitably distributed benefits. First, unbalanced, the introduction of UHC usually increases inequity by disproportionately benefiting the wealthiest groups. Although there are some exceptions, UHC progress analyses from countries at different levels of development suggest poorer people often lose out initially. UHC expansion generally begins with civil servants or urban formal sector workers; wealthier, well connected urban populations demand and receive clinical services, while poorer and rural populations do not. Some public health interventions—such as nutrition labeling, or information campaigns on behavioral NCD risks—also tend to disproportionately benefit wealthier groups, raising similar concerns. But other population-level measures such as clean air acts or road-safety improvements benefit the whole population from the outset, ensuring greater equity. Targeted population-level measures can balance temporary or persistent inequities arising from the introduction of UHC. Second, the clinical sector commonly tends to emphasize specialist curative over health promotion or preventive primary care. Interventions such as dialysis, organ transplants, or new cancer therapies—frequently introduced under UHC—often have the irresistible aura of the rule of rescue, enabling the instant saving of otherwise doomed lives. But as the addition of dialysis to the public benefit package in Thailand illustrates, doing so can entail substantial budgetary opportunity costs with unclear sustainability
Public health, universal health coverage, and Sustainable Development Goals: can they coexist?
Get PDFIn her 2012 reconfirmation speech as WHO Director-General, Dr. Margaret Chan asserted: universal coverage is the single most powerful concept that public health has to offer. It is our ticket to greater efficiency and better quality. It is our savior from the crushing weight of chronic noncommunicable diseases that now engulf the globe . The UN General Assembly is currently considering proposals for Sustainable Development Goals (SDGs), succeeding the Millennium Development Goals. SDGs, focusing on health, specifically includes universal health coverage (UHC) among its targets. Unquestionably, UHC is timely and fundamentally important. However, its promotion also entails substantial risks. A narrow focus on UHC could emphasize expansion of access to health-care services over equitable improvement of health outcomes through action across all relevant sectors—especially public health interventions, needed to effectively address non-communicable diseases (NCDs). WHO first endorsed UHC in its 2005 resolution on sustainable health financing, calling on states to provide access to [necessary] promotive, preventive, curative and rehabilitative health interventions for all at an affordable cost . The resolution and its UHC concept firmly and narrowly center on health insurance packages financed through pre-payment. This narrow understanding is echoed in major recent reviews of 65 empirical studies on UHC progress. The proposed SDGs also separate population-level public health measures from UHC, addressing the former as distinct targets, not under UHC. Yet, a broader understanding encompassing non-clinical measures can also be found in relevant WHO documents. Independent of UHC\u27s conceptual in-determinacy, clinical health services are an essential part of UHC, and are likely to dominate post-2015 state health system improvements. In implementing UHC, how can we ensure continued emphasis on the full spectrum of public health interventions? Unmediated, a narrow UHC focus risks that five distinct pressures prioritize expanded curative clinical services at the expense of individual and population-level health promotion, prevention, and action on social determinants of health. The risk is that this focus leads to more health-care services, but worse overall health outcomes, with less equitably distributed benefits. First, unbalanced, the introduction of UHC usually increases inequity by disproportionately benefiting the wealthiest groups. Although there are some exceptions, UHC progress analyses from countries at different levels of development suggest poorer people often lose out initially. UHC expansion generally begins with civil servants or urban formal sector workers; wealthier, well connected urban populations demand and receive clinical services, while poorer and rural populations do not. Some public health interventions—such as nutrition labeling, or information campaigns on behavioral NCD risks—also tend to disproportionately benefit wealthier groups, raising similar concerns. But other population-level measures such as clean air acts or road-safety improvements benefit the whole population from the outset, ensuring greater equity. Targeted population-level measures can balance temporary or persistent inequities arising from the introduction of UHC. Second, the clinical sector commonly tends to emphasize specialist curative over health promotion or preventive primary care. Interventions such as dialysis, organ transplants, or new cancer therapies—frequently introduced under UHC—often have the irresistible aura of the rule of rescue, enabling the instant saving of otherwise doomed lives. But as the addition of dialysis to the public benefit package in Thailand illustrates, doing so can entail substantial budgetary opportunity costs with unclear sustainability
Two Excursions into Current U.S. Supreme Court Opinion-Writing
Get PDFIn the last weeks in June, 2015, as the present term of the U.S. Supreme Court drew to a close, many controversial and important decisions were handed down by the Court. The substance of the decisions has been written about extensively. Two of the decisions in particular, though, caught my eye as a teacher of legal techniques, not for the importance of the subject of the particular decision, but for what they may illustrate in a teachable fashion about at least some opinion writing. The two cases are Ohio v. Clark (June 18, 2015) interpreting the Confrontation Clause of the U.S. Constitution, and King v. Burwell (June 25, 2015) interpreting a critical provision of the Affordable Care Act (known as Obamacare, establishing national health care insurance in the U.S.). In my “excursions” into these opinions here, I am not directly concerned with the merits or desirability of the decisions
Section 702 and the Collection of International Telephone and Internet Content
Get PDFSection 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the NSA to collect the electronic communications of non-U.S. targets located overseas. Recent media reports and declassified documents reveal a more extensive program than publicly understood. The article begins by considering the origins of the current programs and the relevant authorities, particularly the transfer of part of the post-9/11 President’s Surveillance Program to FISA. It outlines the contours of the 2007 Protect America Act, before its replacement in 2008 by the FISA Amendments Act (FAA). The section ends with a brief discussion of the current state of foreign intelligence collection under Executive Order 12333.
The article next turns to statutory issues related to targeting, post-targeting analysis, and the retention and dissemination of information. It argues that the NSA has sidestepped FAA restrictions by adopting procedures that allow analysts to acquire information to, from and about targets. In its foreignness determination the agency assumes, absent clear evidence to the contrary, that the target is a non-U.S. person located outside domestic bounds. And weak standards mark the foreign intelligence purpose determination. Together, these elements allow for the collection of U.S. persons’ international communications, even as they open the door to intercepting domestic communications. In regard to post-targeting analysis, the article draws attention to the intelligence community’s use of U.S. person information to query data obtained under §702, effectively bypassing protections Congress introduced to prevent reverse targeting. The article further notes in relation to retention and dissemination, that increasing consumer and industrial reliance on cryptography means that the NSA’s retention of encrypted data may soon become the exception that swallows the rule.
In its constitutional analysis, the article finds certain practices instituted under §702 to violate the Fourth Amendment. The NSA’s actions, for purposes of the warrant clause, are constitutionally sufficient insofar as foreign intelligence gathering to or from non-U.S. persons is concerned. The tipping point comes in regard to criminal prosecution. Absent a foreign intelligence purpose, there is no exception to the warrant requirement for the query of U.S. persons’ international or domestic communications. The interception of U.S. persons’ communications under §702 must comport with the reasonableness requirements of the Fourth Amendment. A totality of the circumstances test, in which the significant governmental interest in national security is weighed against the potential intrusion into U.S. persons’ privacy, applies. The incidental collection of large quantities of U.S. persons’ international communications, the scanning of content for information about non-U.S. person selectors/targets, and the interception of domestic communications in MCTs, as well as the query of data using U.S. person identifiers, fall outside the reasonableness component of the Fourth Amendment.
The article concludes by calling for renewed efforts to draw a line between foreign intelligence gathering and criminal law and to create higher protections for U.S. persons, to ensure that the United States can continue to collect critical information, while remaining consistent with regard to the right to privacy embedded in the Fourth Amendment
Mapping a Cultural Studies of Law
Get PDFIn this chapter I briefly map the terrain of a set of scholarly approaches that could be called a cultural analysis of law. A cultural analysis or a cultural studies of law generally starts with the dual premise that law is a set of meaning-making practices that exists within and is the product of a particular culture and that the culture is a set of meaning-making practices that exists within and is the product of a particular set of laws.
In this chapter I unpack and elaborate this foundational idea by exploring three routes along which a cultural analysis of law has been productively pursued: (1) narration, (2) identity, and (3) visuality. Narration is meant to embody a number of different approaches that apply a literary sensibility and critique to the language, interpretation, and rhetoric of law, legal arguments, and legal representations. It also seeks to capture the ways that law and representations of law (in novels, films, and other cultural artifacts) create certain kinds of enduring social narratives and tropes and perhaps teach normative lessons. Identity is a route paved by a robust scholarship that examines the role of law in developing, negotiating, policing, and enforcing certain kinds of individual and collective identities, including racial, ethnic, sexual, national and subnational identities that have been salient at different times. Lastly, I explore more briefly the smaller path of visuality, a recent effort to critically engage with the prominent portrayals of law and legal institutions in our pervasively visual culture as well as with the increasing use of visual arguments and iconography within law and legal practice
Forced Migration, The Human Face of a Health Crisis
Get PDFNearly 60 million refugees, asylum-seekers and internally displaced persons (IDPs) fled their homes in 2014, predominately from war-torn Syria, Afghanistan and Somalia. The global response to assisting this vulnerable group has been wholly incommensurate with the need given the profound health hazards faced by forced migrants at each stage of their journey. The majority of forced migrants are housed in lower-income countries that do not have the infrastructure to assist the significant numbers of individuals who are crossing their borders and the humanitarian organizations who seek to assist in the response are grossly underfunded and under-resourced.
Countries have varying responsibilities to protect different classes of forced migrants based in international law, however there are significant gaps in existing agreements, leaving many individuals without protection or hope of assistance. There is a need to strengthen existing international agreements to ensure that all classes of forced migrants are entitled to protection and to ensure the enforceability of existing agreements where governments refuse to honor their existing obligations
[Un]happy Together: Why the Supremacy Clause Preempts State Law Digital Performance Rights in Radio-Like Streaming of Pre-1972 Sound Recordings
Get PDFLovers of the music of Frank Sinatra, Elvis Presley, Etta James, and hundreds of other recording artists whose records were made before February 15, 1972, may soon have a hard time hearing these great artists on any satellite or Internet radio service. Recently, two federal district courts have found that state laws were violated when satellite radio broadcaster Sirius XM Radio included pre-1972 sound recordings in its broadcasts without the owners’ permission, but these courts did not consider-–and the parties did not argue-–how the Supremacy Clause applies to those state law claims. This article argues that state laws purporting to grant digital performance rights to pre-1972 sound recordings are necessarily preempted by the Supremacy Clause of the United States Constitution.
This article contends that enforcement of those state laws would create a serious obstacle to “the accomplishment and execution of the full purposes and objectives of Congress” in enacting the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”). The DPRA reflects Congress’ careful balancing of interests and recognition of the need for an easily administrable system of licensing, which Congress established through a complex and comprehensive compulsory licensing system. The Supremacy Clause thus preempts all state laws purporting to require licenses for digital performance rights or payment of royalties for the use of such rights by Internet or satellite radio stations beyond what is expressly provided for in the compulsory licensing system established by the DPRA, because permitting countless owners of individual pre-1972 sound recordings to assert claims for royalties and other damages outside of the compulsory licensing system would frustrate Congress’ goals in establishing that system.
Part I of this article provides a brief overview of the federal rights at issue and the (very) brief history of performance rights in sound recordings, noting the absence of any express state law recognition of a performance right in sound recordings throughout most of the 20th century (other than short-lived decisions in two states over seventy-five years ago that focused on notices stamped on records purporting to prohibit a purchaser’s use of sound recordings on radio rather than a true performance right). It is only in very recent cases that courts in New York and California have recognized state law performance rights. However, they did so without considering Supremacy Clause preemption or how any state law performance rights might conflict with the federal statutory compulsory license regime established by the DPRA.
Part II of the article explains the relevant legislative history and provisions of the DPRA governing the comprehensive licensing system. That statutory license and rules governing it were established to provide an efficient mechanism for digital Internet and satellite radio services to operate in compliance with their legal obligations. In Part III, the article explains Supremacy Clause doctrine and distinguishes the Supreme Court’s opinion in Goldstein v. California, which rejected a Supremacy Clause challenge to a state record piracy law in 1973. It demonstrates why neither the Court’s decision in Goldstein nor the language of the Copyright Act’s express preemption clause, which exempts state laws governing pre-1972 sound recordings from statutory preemption, precludes conflict preemption under the Supremacy Clause in the context of digital radio services that are subject to the federal compulsory license.
Part IV of the article acknowledges that preemption of state law protection for digital performances of pre-1972 sound recordings raises equitable concerns, as it leaves some of this nation’s most treasured musical artists uncompensated for use of their works by Internet and satellite streaming services while the authors of more current works are compensated. However, given the delicate balancing that has gone into Congress’ recognition of a limited digital performance right and creation of a compulsory statutory licensing system, any remedy for the inequity to owners of pre-1972 sound recordings must be left to Congress. Allowing individual courts in individual states to craft a patchwork of inconsistent remedies would disrupt the balance struck by Congress and interfere with the functioning of the compulsory license system for digital sound recording performances. This is a result that the Supremacy Clause does not permit
A Mask That Eats into the Face: Images and the Right of Publicity
Get PDFIn their eagerness to reward celebrities for the power of their “images,” and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment. The power of the visual image has allowed courts to create an inconsistent, overly expansive regime that would be easily understood as constitutionally unacceptable were the same rules applied to written words as to drawings and video games. The intersection of a conceptually unbounded right with a category of objects that courts do not handle well has created deep inconsistencies and biases in the treatment of visual and audiovisual media, particularly comics and video games. These problems show up both in First Amendment defenses and in copyright preemption analysis. The possible arguments one might offer for treating images differently are insufficient to justify this disparity. The Article concludes that, absent the distortion produced by images, the right of publicity would properly be understood as sharply limited