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Arendt on the Crime of Crimes
Get PDFGenocide–-the intentional destruction of groups “as such”–-is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.
Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her systematic philosophy refers to the multiplicity of unique human individuals, never of groups. Indeed, Arendt is famously skeptical of views that subordinate individuality to group identity. That makes her theorizing an instructive test case of whether individualism can yield an account of why groups matter.
The paper analyzes several possible approaches to the problem of explaining the special value of groups, beginning with Raphael Lemkin’s theory of groups as contributors to universal civilization, and then turning to Arendt’s efforts. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept. For Arendt, group identification makes sense solely as a political act of resistance to persecution. In the conclusion, the paper examines a remarkable moment during the trial of Radovan Karadzić, when a defense witness explained his conversion to radical nationalism by quoting “Mrs. Hannah Arendt, a prominent philosopher.” The moment illustrates how hard it is to maintain the stance of humanity while assigning political value to group identity
Antitrust, Competition Policy, and Inequality
Get PDFEconomic inequality recently has entered the political discourse in a highly visible way. This political impact is not a surprise. As the U.S. economy has begun to recover from the Great Recession since mid-2009, economic growth has effectively been appropriated by those already well off, leaving the median household less well off. The serious economic, political and moral issues raised by inequality can be addressed through a panoply of public policies including competition policy, the focus of this article. The article describes the channels through which market power contributes to inequality, and sets forth a range of possible antitrust policy adjustments that might be considered in response to that market power, or to inequality more generally. The aim of this article is to identify various potential competition policy alternatives that would respond to concerns about inequality, while recognizing that some are more controversial and provocative than others. These policy adjustments include embracing the consumer welfare standard, increasing enforcement agency budgets, targeting enforcement and remedies to benefit the less advantaged, adopting more interventionist antitrust and regulatory standards, recognizing abuse of dominance as an antitrust offense, and adopting reduction of inequality as an explicit antitrust goal
Law’s power to safeguard global health: a Lancet–O’Neill Institute, Georgetown University Commission on Global Health and the Law
Get PDFThe law-–global, national, and subnational–-plays a vital, yet often underappreciated, role in safeguarding and promoting the public’s health. In this article, we launch the Lancet-O’Neill Institute, Georgetown University Commission on Global Health and the Law. Commissioners from around the world will explore the critical opportunities and challenges of using law as a tool, while evaluating the evidence base for legal interventions. The Commission aims to define and systematically describe the current landscape of law that affects global health and safety.
Commissioners were chosen from disciplines that range from health, policy, and law to economics and governance. The Commission aims to present a compelling argument as to why law should be viewed as a major determinant of health and safety and how the law can be used in a powerful and innovative way to address the global burdens of injury and disease. Above all, the Commission will pursue justice, finding innovative ways to narrow existing and unconscionable health inequalitie
The Federal Reserve and A Cascade of Failures: Inequality, Cognitive Narrowness and Financial Network Theory
Get PDFThe recent financial crisis hollowed out the core of American middle-class financial stability. In the wake of the financial crisis, household net worth in the U.S. fell by 24%, for a loss of $16 trillion. Moreover, retirement accounts, the largest class of financial assets, took a steep drop in value, as did house prices, and these two classes of assets alone represent approximately 43% of all household wealth. The losses during the principal crisis years, 2007–2009, were devastating, “erasing almost two decades of accumulated prosperity,” in the words of a 2013 report. By the Federal Reserve. Beyond these direct household balance-sheet losses, 1 out of every 4 homeowners were underwater by 2009 with mortgages worth less than the value of their homes. If we add the 3.7 to 5 million foreclosures that forced Americans to move from the economic and emotional stability of family homes, we see a portrait of dramatic financial instability in the wake of the financial collapse. And the Federal Reserve’s commitment to low interest rates, so beloved on Wall Street, has prevented many families from rebuilding their wealth through interest on savings; these “zero-bound” interest rates are an impediment to middle-class recovery from the losses of the crisis.
By contrast, the financial sector, the cause of the crisis, has prospered from adversity, growing to 9% of GDP by 2010 even as it became less efficient. This is one of the highest shares of GDP in the past half century and represents 29% of all profits in America. The financial sector earns profits by pooling funds to bring net savers together with net borrowers in financial contracts, a process known as intermediation. Economist Thomas Philippon of New York University found that the profits from intermediation grew from less than 2% of GDP in 1870 to nearly 6% before the economic crash of 1929. After World War II, financiers gradually increased their share of the economy to 5% by 1980, close to what it had been before the crash. The focused deregulatory agenda of the Reagan administration and Alan Greenspan’s deregulatory passions at the helm of the Fed from 1987 to 2006 swelled the balance sheets of financial firms to the high point of 9% of GDP by 2010.
The return to investors did not match the growth in the financial sector’s share of GDP. So what did investors get for their money? Philippon says it’s impossible to beat the market in part because of high-frequency trading that locks out the ordinary investor through sophisticated high-speed computer transmission of orders with preferential cable and algorithmic access to the trading desks
Prison Abolition and Grounded Justice
Get PDFThis article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste. Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address—interpersonal violence, addiction, mental illness, and sexual abuse, among others. Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law—principally deterrence, incapacitation, rehabilitation, and retributive justice—might be pursued by means entirely apart from criminal law enforcement. Abandoning prison-backed punishment and punitive policing remains generally unfathomable. This article argues that the general reluctance to engage seriously an abolitionist framework represents a failure of moral, legal, and political imagination. If abolition is understood to entail simply the immediate tearing down of all prison walls, then it is easy to dismiss abolition as unthinkable. But if abolition consists instead of an aspirational ethic and a framework of gradual decarceration, which entails a positive substitution of other regulatory forms for criminal regulation, then the inattention to abolition in criminal law scholarship and reformist discourse comes into focus as a more troubling absence. Although violent crime prevention and proportional punishment of wrongdoing purportedly justify imprisonment, this article illuminates how the ends of criminal law might be accomplished in large measure through institutions aside from criminal law administration. More specifically, this article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare. This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and “greening” urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement. By exploring prison abolition and grounded preventive justice in tandem, this article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together
Substitute Arguments in Constitutional Law
Get PDFIn this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument
The Normative Authority of the World Health Organization
Get PDFThe World Health Organization (WHO) was born after the devastation of World War II, as a normative agency endowed with unprecedented constitutional powers. But even as it has achieved stunning successes, such as the eradication of smallpox, it has failed to live up to the exalted expectations of the postwar health and human rights movement e exemplified most recently by its inadequate response to the Ebola epidemic. Our aim is to offer innovative ideas for restoring the Organization to its leadership position by exercising its normative authority, even as it faces a crowded and often chaotic global health architecture. Before doing so, it will be helpful to summarize the main tensions the Organization faces in today\u27s global health landscape
3 Critical Challenges for Global Health Security
Get PDFInternational institutions are poised to make one of the most momentous decisions about the future of global health security since the formation of the World Health Organization (WHO) in 1948.
By the end of this year, 5 global commissions will have published major critiques of global health preparedness, all spurred by the Ebola epidemic, which exposed deep flaws in the international system
Community Lawyering: Introductory Thoughts on Theory and Practice
Get PDFThere are several fundamental questions that one might ask in seeking the meaning of the term community lawyer. Albeit somewhat theoretical, the most basic questions involve delving into exactly what is meant by the term community. For what, exactly, is the community-lawyer lawyering? Further, once a client has been identified, questions will arise about how the lawyer should relate to that client and about the role the lawyer ought to play in assisting the client to achieve its goals. There is a long and rich literature concerning the latter question but a fairly sparse body of legal writing on the former. In this essay, I would like to elaborate on both of these issues and then bring these ideas together to develop a concept of community lawyering. I will then discuss some practical applications of community lawyering in the context of an affordable housing program I run at the Georgetown University Law Center
Content, Purpose, or Both?
Get PDFMost debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners’ authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative “purpose” is an illegitimate category. Part IV looks towards the future, suggesting that broad understandings of transformativeness are here to stay