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Indonesia Has It Backward: It\u27s Not E-Cigarettes That\u27s the Problem but Smoking
Get PDFIndonesia has announced it will be banning e-cigarettes. But that would do nothing to reduce smoking, which should be the main target of those interested in reducing tobacco use deaths and harms. Rather than ban e-cigarettes, it makes more sense to regulate them effectively so that they can serve as a useful anti-smoking tool. The availability of e-cigarettes to smokers can also make much more aggressive anti-smoking strategies more practically and politically viable-–perhaps even paving the way for banning cigarettes, instead
\u3ci\u3e King v Burwell\u3c/i\u3e: Subsidizing US Health Insurance for Low- and Middle-Income Individuals
Get PDFIn King v. Burwell, the U.S. Supreme Court once again saved the Affordable Care Act (ACA) by upholding subsidies (tax credits) offered to low- and middle-income individuals for insurance bought on federal exchanges. A contrary opinion would have put at risk health insurance for 6.4 million Americans and threatened to destabilize insurance markets for millions more.
The ACA is supported by four interlocking reforms, each of which are necessary to realize its promise of expanding health care coverage: (1) guaranteed issue (prohibiting discrimination based on pre-existing conditions), (2) community rating (barring insurers from imposing higher premiums based on health status and prohibiting lifetime caps), (3) tax subsidies to offset the cost of premiums for low- and middle-income individuals, and (4) Medicaid expansion. King v. Burwell threatened to undermine the third pillar. Buried deep within the law, the ACA states that subsidies are available to “Exchange[s] established by the State.” Not imaging that their residents could be denied subsidies, 34 states chose to allow the federal government to run their exchanges. The Supreme Court ruled in favor of the government, recognizing that Congress would not have given states the option of having the federal government run their exchanges, while simultaneously dooming those exchanges to dysfunction.
With the ACA now safe from its latest—and it is to be hoped last—existential judicial challenge, attention must now turn to the law’s unfinished business. First, a confluence of judicial interpretation and political impasse has created a new Medicaid “donut hole,” with many earning too much to qualify for Medicaid but too little to receive ACA subsidies. States should close this hole, both to protect their most vulnerable citizens and to boost their own economies. Second, the law has left out approximately 11 million undocumented immigrants to the U.S. More than half are uninsured, leading to poor health outcomes, needlessly straining emergency services and safety-net hospitals, and endangering public health. Some localities have experimented with ways of expanding coverage, but national action is needed to guarantee universal health coverage
Market Intermediation, Publicness, and Securities Class Actions
Get PDFSecurities class actions play a crucial, if contested, role in the policing of securities fraud and the protection of securities markets. The theoretical understanding of these private enforcement claims needs to evolve to encompass the broader set of goals that underlie the securities regulatory impulse and the publicness of those goals. Further, a clear grasp of the modern securities class action also requires an updated understanding of how the role of market intermediation in securities transactions has reshaped the realities of securities litigation in public companies and the evolution of the fraud cause of action in the context of open-market transactions. The Supreme Court’s embrace of market efficiency as a mechanism to establish reliance in its 1988 decision, Basic, Inc. v. Levinson, illustrates the necessary adaptation of common law fraud to the modern market setting, and Congressional enactment of the PSLRA in 1995 exemplifies the efforts to respond to the litigation risks inherent in that adaptation. Together, Basic and the PSLRA provide a frame for understanding both a series of recent Supreme Court decisions on securities class actions and a different understanding of the theory undergirding those class actions. To develop this understanding, we expand the conversation about the goals of securities regulation to include the set of goals that are rooted in publicness and focus on market protection, innovation, and growth, as well as stability and systemic considerations. We posit that this broader theoretical understanding explains why the Court rejected a challenge to the fraud on the market doctrine and, instead, permitted the continued use of market efficiency: the Court chose to preserve the deterrence and enforcement role of these cases in promoting market growth and innovation. We then apply this understanding of publicness and market intermediation to the interpretation of the Court’s limited, but ambiguous, use of “price impact” in securities fraud cases. Our analysis reveals that the practical balance established by Basic and the PSLRA has prevailed over pure doctrinal approaches to issues like reliance or other, more incomplete theoretical explanations focused solely on compensation, deterrence, and investor protection, but neglecting the role of publicness in the securities markets
A Tale of Two Diseases: Mental Illness and HIV/AIDS
Get PDFThere have been dramatic advances in the treatment of HIV/AIDS. Whereas HIV was once a dire diagnosis, today it is treatable, and individuals who receive early and consistent treatment can expect to live a normal lifespan. Why has the scientific community made the same strides with mental illness? When I was the Legal Director of the National Association of Mental Health in the United Kingdom in the 1980s, major mental illnesses were primarily treated with powerful antipsychotics, such as haloperidol, that carried the debilitating side effects of tardive dyskinesia—involuntary movements of the tongue, lips, face, trunk, and extremities. When I first saw mental patients shuffling, tongues protruding, and physically shaking, I thought they exhibited symptoms of mental illness, but soon realized it was the treatment itself. Newer second-generation medicines cause metabolic syndrome, obesity, and cardiovascular disease. In other words, the therapeutic science of mental health has not come nearly far enough.
Another indicator of the lamentable failure to meet the needs of persons with mental disabilities is the large number of vulnerable individuals warehoused in large, inhumane institutions, often for decades. While the de-institutionalization movement (a strained alliance between civil libertarians and fiscal conservatives) tore down sterile hospitals, today many individuals with mental illness are in prisons, nursing homes, or are homeless.
Inadequacies of science and failures in policy might be overlooked if mental illness were not so prevalent, with enormous individual, family, community, and economic costs.
Mental illness accounts for about 13% of healthcare costs globally, but only 3% of healthcare funding; many countries have no dedicated mental health budget. Despite a higher death rate, mental illnesses receive a fraction of the charitable donations made to combat cancer or HIV/AIDS. Moreover, the trained mental health workforce is pitifully small given the need. Mental health professionals account for just 1% of the global health workforce.
HIV/AIDS and mental illness have common features. Both are complex intractable diseases affecting marginalized communities throughout the lifespan and both are shrouded in stigma and discrimination. Certainly the human suffering and social alienation caused by HIV/AIDS remains an urgent global threat. Yet, AIDS has changed the world. How did all these technological advances come about, and why did a particular disease, AIDS, forge a pathway toward unprecedented scientific discoveries while mental illness remains largely ignored?
So much scientific progress has been made since AIDS first emerged. But today, persons with serious mental illnesses – particularly in lower socioeconomic classes – are no better off than they would have been if they were born decades ago. Their treatment, if they have access to any treatment, will be nearly as debilitating as the disease. They are likely to be in a prison or nursing homes, or just as problematic, living on the streets. Sadly, in 2015, the mentally ill remain the most stigmatized and isolated among us.
How is that for scientific and social progress
Why the NSA Data Seizures Are Unconstitutional
Get PDFDue to the unauthorized leaks of classified information, we have come to learn that the National Security Agency (NSA), an executive branch arm of the U.S. military, has established several data collection programs. In this article, I am not going to get into the details of these programs. Instead, I will limit my focus to what I consider to be the serious constitutional problem with any such program, regardless of the details: the fact that the NSA is demanding that private companies, with which virtually all Americans contract to provide their voice communications, turn over the records of every phone call that is made on their systems. This metadata is then stored on NSA super computers for later analysis.
In this article, I am not going to address the legality of this program under existing statutes
The Triumph of Gay Marriage and the Failure of Constitutional Law
Get PDFThe Supreme Court\u27s much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.
But although the Chief Justice thought that advocates of gay marriage should by all means celebrate today\u27s decision, he admonished them not [to] celebrate the Constitution. The Constitution, he said, had nothing to do with it .
Part I of this article quarrels with the Chief Justice\u27s assertion that the Constitution had nothing to do with it. It argues that it is the dissenting justices, rather than their colleagues in the majority, who have ignored the traditions of American Constitutional law.
Part II argues that the Chief Justice is exactly right when he says that we should celebrate the Obergefell decision, but not the Constitution, but he is right for reasons that he, himself, would disagree with. The Court\u27s decision marks a partial and flawed but nonetheless important advance toward inclusion and decency. The majority\u27s opinion, replete with invocations of the supposedly binding force of constitutional obligation, belittling of the large and growing number of Americans who are unmarried, and mischaracterization of the nature of the movement for gay rights, is exclusionary, reactionary, and authoritarian. Even as the Court demonstrates its (concededly limited) capacity to advance the cause of social justice, it unwittingly also demonstrates the failure of constitutional law to serve its core purpose of providing a just ground for cooperation among people who disagree about fundamentals.
A brief conclusion discusses the implications of this failure
Free To Be You and Me? Copyright and Constraint
Get PDFJoseph P. Fishman’s Creating Around Copyright advances a provocative thesis: some restrictions on creativity can spur the development of additional creative solutions, and (some level of) copyright might be one of those restrictions. If Picasso was right that “forcing yourself to use restricted means is the sort of restraint that liberates invention,” then being forced by law to use restricted means might do the same thing, ultimately leading to more varied and thus more valuable works.
At the outset, it’s important to know the baseline against which we ought to evaluate Fishman’s claims. Most copyright restrictionists, of whom I count myself one, don’t want to eliminate all copyright law. Fishman’s argument is directed at creators who want to take an existing work and do something with it — incorporate parts of it into a new creative work or make a derivative work based on it. Because the question is the proper scope of copyright as applied to these works, the comparison should not be to a world without copyright, but should instead focus on the marginal effects of expanding or contracting copyright’s definitions of substantial similarity and derivative works. Once the question is properly framed, I have concerns about the major analogies Fishman uses — patent law and experimental evidence about other types of constraints on creativity — as well as his model of the rational creator
Terrorism Trials in Article III Courts
Get PDFSome individuals reject Article III courts as a forum for bringing terrorist suspects to justice on the grounds that the ordinary judicial system cannot handle such cases. As an empirical matter, this claim is simply false. Since 2001, myriad terrorism trials have progressed through the criminal system. The U.S. Department of Justice (DOJ) reports that between 2001 and 2010, there were 998 defendants indicted in terrorism prosecutions. Eighty-seven percent of the defendants were convicted on at least one charge. According to the Executive Office for the U.S. Attorneys, from FY 2004 to FY 2009, there were 3,010 terrorism prosecutions. It reported 2,663 terrorism convictions during the same time period. What these numbers demonstrate (reporting inconsistencies not-withstanding) is that Article III courts have routinely, and successfully, managed international and domestic terrorist cases. Nevertheless, there are important concerns driving such critiques that deserve further scrutiny.
The author first considers the most common objections to pursuing terrorist cases in the ordinary judicial system. The arguments fall into five categories: rules of evidence, the problems created by classification, the right to call and confront witnesses, the right to a speedy and public trial by an impartial jury, and the right to self-representation. Critics look to these areas to suggest that either detention or military commissions would be a more appropriate way to handle individuals suspected of terrorist activity.
Second, she suggests that there are risks in sidestepping Article III courts. Lowered standards that mark the alternative realms impact due process, public perception, and conviction. Transferring cases out of the civilian system undermines citizens’ rights: namely, the right to participate in the administration of justice. The creation of alternative venues creates forum competition, which may lead to an abrogation of justice. Pursuing cases through the military system may also undermine judicial authority and contribute to a perception of incompetence with regard to the criminal system.
Third, as an empirical matter, many of the claims about the incompetence of Article III courts do not play out in practice. Here, by way of illustration, the author focuses on a case currently underway in Manhattan, United States v. Abu Ghayth. Some procedures (not used in this case) offer further ways to address the difficulties endemic to terrorist prosecution. While many of the objections can be overcome, one—the right to self-representation—proves more troublesome. Although it occurs in only a small fraction of cases and there are a handful of ways to address it, each of the solutions carries consequences. The problem, nevertheless, is not unique to the Article III context and thus vitiates not in favor of moving to a system of military commissions, but instead a re-examination of the issues associated with denying a defendant a right to appear pro se and appointment of standby counsel to address the underlying purpose of the right itself
Human Rights Thinking and the Laws of War
Get PDFIn a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d\u27être of international humanitarian law and human rights law.”
Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is “perhaps better described as the law of ‘human rights in armed conflicts’”? To answer yes, I argue, amounts to a reinterpretation of IHL that drifts far from its history. This reinterpretation is what I label human rights thinking (to distinguish it from doctrinal specifics). In its origins, IHL was not designed to protect human dignity, but to reduce human suffering; it was a form of disaster relief. Human rights law, by contrast, originated as a blueprint for the kind of peacetime societies that would no longer plunge the world into what the UN Charter calls the “untold sorrow” of war.
Nevertheless, law changes. Perhaps the nature of IHL has evolved over time in the direction of human rights thinking, and should evolve that way. That is the view I defend-–with some qualifications-–in the final sections of this essay. First, I explore the very different genealogies of IHL and human rights law, and explain how human rights thinking migrated into IHL. I attribute the migration to international criminal law, military occupations, and reactions to the U.S. war on terrorism. In the final sections, I explore two ways human rights thinking can be pursued in wars. One of them, I will argue, overplays and overestimates what human rights thinking can accomplish. It does so by, in effect, willing away fundamental differences between war and peace. The other is an approach that I have defended for more than three decades. It consists, at bottom, of taking a civilian’s-eye view of the disasters of war and reading the law accordingly-–recognizing, one might say, that Mother Courage and her children matter just as much to the law of war as Henry V and his band of brothers
Time-Mindedness and Jurisprudence
Get PDFAnalytic jurisprudence often strikes outsiders as a discipline unto itself, unconnected with the problems that other legal scholarship investigates. Gerald Postema, in the article to which this paper responds, traces this “unsociability” to two narrowing defects in the project of analytic jurisprudence: (1) from Austin on, it has concerned itself largely with the analysis of professional concepts, without connecting that analysis with other disciplines that study law, nor with the history of jurisprudence itself, nor with general philosophy; (2) analytic jurisprudence studies only time-‐slice legal systems, rather than legal systems unfolding in history. He argues that a time-‐slice legal system is incapable of explaining the normativity of law. Postema recommends an approach to jurisprudence based on sociability with other disciplines, including its own history and general philosophy; he also recommends an approach grounded in synechism – Peirce’s label for the attempt to find continuities between seemingly-‐discontinuous phenomena. My comments are largely sympathetic to Postema. I show that his argument about the normativity of law makes the most sense if we embed it in a “meaning as use” theory of legal language and its conceptual content. I am more skeptical of synechism, which on its face rejects a perfectly valid and valuable historiography focused on discontinuity – the kind of history written by Kuhn, Foucault, and Marx. I show that Peirce’s argument for synechism fails, whereas Postema’s version of synechism broadens the notion of continuity to include what might ordinarily be thought of as discontinuities. On the one hand, that rescues Postema from the charge of ruling out valid approaches to history on a priori grounds; on the other, it makes Postema’s version of synechism less distinctive than he supposes