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Coercing Pregnancy
Get PDFIntimate partners coerce thousands of women in the United States into pregnancy each year through manipulation, threats of violence, or acts that deliberately interfere with the use of, or access to, contraception or abortion. Although many of these pregnancies occur within the context of otherwise abusive relationships, for others, pregnancy serves as a trigger for intimate partner violence. Beyond violence preceding or resulting from pregnancy, women who experience coerced pregnancies often suffer other physical, financial and emotional harms. Despite its correlation to domestic violence, reproductive coercion fits imperfectly, if at all, within our existing laws designed to combat domestic violence or rape. Although the harms of forced sex and, though to a slightly lesser extent, the harms of domestic violence, are well understood and accepted in our culture and our laws, the harm of experiencing a pregnancy through coercive acts remains largely invisible in both spheres, despite the prevalence of coerced pregnancies. This article begins by filling in the missing narrative of reproductive coercion by exploring the social and legal contours of how women are coerced into pregnancy, the harms that can result, and the deep correlation between such acts and domestic violence. It then explores how our cultural and legal conflation of pregnancy with sex, motherhood and even abortion, limits our ability to isolate and understand the experience of pregnancy coercion. This article concludes by considering how arming feminists and other advocates with an increased understanding of the interrelatedness between pregnancy, coercion, and intimate partner abuse can help to broaden domestic violence laws and policies, and reconceptualize pregnancy prevention as violence prevention
Disappearing Claims and the Erosion of Substantive Law
Get PDFThe Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.
While this shift from dispute resolution in courts—the public realm—to dispute resolution in arbitration—the private realm—initially undermined values and mechanisms of adjudication, the shift from public lawsuits to private arbitration now also threatens values and mechanisms of lawmaking. This new threat to the lawmaking function stems from a fundamental theoretical shift in the Court’s arbitration jurisprudence, cemented in its 2013 decision in American Express v. Italian Colors. As this piece explains, in Italian Colors, the Supreme Court subtly, but definitively, abandoned its descriptive and normative premise that freedom of contract was justified in the arbitration context because it would result in more cost-effective procedures for resolving disputes, and, accordingly, enforcement of federal statutory regimes. In its place, the Court adopted a reductionist vision of arbitration as any set of private dispute resolution procedures chosen by the parties, no matter how onerous or inefficient, and it held that the Federal Arbitration Act required courts to enforce whatever terms the parties chose.
Particularly given a pronounced reliance in the United States upon private litigants to enforce statutory directives, the Court’s recent arbitration jurisprudence now threatens the substantive law itself. Through private arbitration contracts, private parties can effectively rewrite substantive law by rendering a host of legal claims mere nullities. What’s more, private parties can exercise this quasi-lawmaking power almost entirely outside of public view, through rarely read and little-understood provisions in contracts of adhesion subject to scant public scrutiny or regulatory oversight. The largely unchecked power of private entities to recalibrate their legal obligations, now recognized by the Court, leaves little to stop an erosion of substantive law
An O\u27Neill Institute Briefing Paper: Ebola, the World Health Organization, and Beyond: Toward a Framework for Global Health Security
Get PDFThe West African Ebola epidemic has demonstrated that the world remains ill-prepared to respond to infectious disease outbreaks. A host of institutions are now reviewing what went wrong, and new institutions are being considered, including an African Centers for Disease Control and Prevention and World Bank-initiated Pandemic Emergency Facility. The World Health Organization itself failed in one of its core functions by allowing a preventable infectious disease to spiral out of control in the world’s poorest region. The 68th World Health Assembly (WHA), held in May 2015, provided an opportunity for the Organization to reflect on what went wrong and reform the organization to be better able to address the next epidemic. In this Briefing Paper we lay out the present landscape, including reforms needed of the International Health Regulations, and assess the strengths and weaknesses of the outcomes of the 68th WHA, including integrating WHO’s outbreak and emergency response programs; creating a global health emergency workforce, deployable on short notice; and setting up a global health emergency contingency fund. We also consider the vital structural issues the WHA failed to effectively address, including bolstering WHO’s core funding, increasing coherence between the WHO headquarters and regional offices, and enhancing civil society engagement
Indonesia Has It Backward: It\u27s Not E-Cigarettes That\u27s the Problem but Smoking
No full textIndonesia 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
The Abiding Exceptionalism of Foreign Relations Doctrine
Get PDFIn their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign affairs doctrine remains resolutely exceptionalist in some areas beyond those identified by the authors as reflecting the “unfinished business” of normalization. When these additional manifestations of exceptionalism are added to the ones the authors have identified, the claim that exceptionalism is now exceptional seems overstated.
Part I of this response discusses the authors’ definition of exceptionalism and normalization, which the authors describe as “an independent contribution” of the article, “regardless of whether one agrees with [its] broader normalization thesis.” As noted, their definition collapses the question of normalization with the proper interpretation of the Constitution.
Part II challenges the authors’ characterization of some doctrines or decisions as exceptionalist. The authors cite Missouri v. Holland as an example of foreign relations exceptionalism. But the holding of Missouri v. Holland is supported by the constitutional text and is consistent with original intent and the case law preceding the decision.
Part III focuses on the judicial enforcement of treaties. As I have written at some length in these pages, the Supremacy Clause establishes that treaties are to be enforceable in the courts in the same circumstances as statutes. Yet the courts have engrafted onto the Supremacy Clause a distinction between self-executing treaties and non-selfexecuting treaties, with only the latter being judicially enforceable
Those Awful Tahrir Rapes
Get PDFThis essay highlights the myriad ways in which street sexual harassment of women in Egypt, of which I argue the mass rapes of Tahrir are an egregious instance thereof, disciplines women\u27s bodies. It describes briefly and dismisses the frameworks for understanding those practices proposed by the left, the right and the government. I also describe the role that law, in conjunction with its lax enforcement, plays in intensifying this regulation.
The essay uses purposefully the fighting radical feminist pronoun we to describe the predicament. I am an Egyptian women. I consider myself an ally in their attempt to understand, resist and eliminate a practice that has bedeviled their public lives. I am as pissed as they
The International Health Regulations 10 Years On: The Governing Framework for Global Health Security
Get PDFThe World Health Organization (WHO) and its global health security treaty, the International Health Regulations (2005) (IHR) have lost the world\u27s confidence after the West African Ebola epidemic. The epidemic led to several high-level reviews of the IHR and global health security more broadly. Here, we propose a series of recommendations for operational and legal reforms to enhance the functioning of the FCGH. It is critical that WHO act on them quickly, before the window of opportunity for fundamental reform closes.
WHO should ensure that all states fulfill their obligations to develop national core surveillance and response capacities, including through funding, possibly through additional assessed contributions, and an independent peer-review assessment process, with assessments identifying gaps and strategies and financing to fill those gaps. Civil society could also participate in ensure the validity of assessments. Independent assessments will improve confidence in the IHR, as would increasing the transparency of Emergency Committees deliberations, supplemented by an independent body to review disease data and offer recommendations to the WHO Director-General.
States might more promptly notify WHO of events that may constitute public health emergencies of international concern with enhanced training and if the IHR\u27s decision instrument is amended to make more diseases automatically notifiable. WHO should also further encourage and facilitate reporting from non-governmental sources. A harmonized, gradient system for health emergencies would also bring greater clarity to disease response, while maintaining the power of a declaration of a public health emergency of international concern.
To improve compliance with temporary recommendations and deter harmful additional measures, WHO could use public pressure, acknowledging compliance while publicly naming states parties and businesses that fail to comply, along with requesting justification for additional measures. States could use dispute mediation, arbitration, or other legal procedures, such as through the World Trade Organization, to discourage harmful trade and travel restrictions. And to advance a One Health approach, based on the links between human, animal, and environmental health, WHO should increase its use of cooperative agreements with other intergovernmental bodies, while integrating the Pandemic Influenza Pandemic Framework with the IHR to encourage equitable sharing of vaccines and therapies
Imagining Global Health with Justice: In Defense of the Right to Health
Get PDFThe singular message in Global Health Law is that we must strive to achieve global health with justice—improved population health, with a fairer distribution of benefits of good health. Global health entails ensuring the conditions of good health—public health, universal health coverage, and the social determinants of health—while justice requires closing today’s vast domestic and global health inequities. These conditions for good health should be incorporated into public policy, supplemented by specific actions to overcome barriers to equity.
A new global health treaty grounded in the right to health and aimed at health equity—a Framework Convention on Global Health (FCGH)—stands out for its possibilities in helping to achieve global health with justice. This far-reaching legal instrument would establish minimum standards for universal health coverage and public health measures, with an accompanying national and international financing framework, require a constant focus on health equity, promote Health in All Policies and global governance for health, and advance the principles of good governance, including accountability. While achieving an FCGH is certainly ambitious, it is a struggle worth the efforts of us all. The treaty’s basis in the right to health, which has been agreed to by all governments has powerful potential to form the foundation of global governance for health.
From interpretations of UN treaty bodies to judgments of national courts, the right to health is now sufficiently articulated to serve this role, with the individual’s right to health best understood as a function of a social, political, and economic environment aimed at equity. However great the political challenge of securing state agreement to the FCGH, it is possible. States have joined other treaties with significant resource requirements and limitations on their sovereignty without significant reciprocal benefits from other states, while important state interests would benefit from the FCGH. And from integrating the FCGH into the existing human rights system to creative forms of compliance and enforcement and strengthened domestic legal and political accountability mechanisms, the treaty stands to improve right to health compliance. The potential for the FCGH to bring the right to health nearer universal reality calls for us to embark on the journey towards securing this global treaty
Pluralism and its Perils: Navigating the Tension between Gay Rights and Religious Expression
Get PDFThe conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake.
The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster respect for competing norms and promote affirmative values rather than simple suppression of conflict. In particular, the article argues for adoption of three premises, all of which contribute new insights to this continuing debate: that obedience to antidiscrimination law is not inherently expressive; that disagreement with antidiscrimination law must be fully protected; and that the framing of antidiscrimination norms should be de-moralized.
Some scholars believe that pluralism requires treating religious authority as equivalent to law. This article argues that, in situations such as the Georgetown case, when seemingly irreconcilable value systems collide, the proper role of courts in a pluralistic democracy is to provide the secular authority that ultimately resolves such a case, if not the volatile cultural dispute underlying it
Conceptualizing Student Practice for the 21st Century: Educational and Ethical Considerations in Modernizing the District of Columbia Student Practice Rules
Get PDFThis article traces the history of the amendment process. It provides a short history of student practice rules and then, using the student practice rule in effect in the District of Columbia prior to the 2014 amendments, describes the various components of those rules that courts and bars across the nation have implemented to assist courts, advance legal education, and preserve advocates’ ethical obligations to clients. It then describes some of the comments to the proposed amendments offered by the District of Columbia Bar and other D.C. lawyers during the public comment period and the modifications to the District of Columbia student practice rule that the District of Columbia Court of Appeals accepted. Finally, it discusses some areas of disagreement that arose during the process and a description of the reasons for those disagreements