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Mandatory Anti-Bias CLE: A Serious Problem Deserves More Meaningful Response
Get PDFThis essay addresses the problematic convergence of two recent trends: (1) the expansion of jurisdictions requiring anti-bias training (ABT) as part of mandatory continuing legal education (CLE), and (2) the growing recognition among social scientists that such training, at least as currently practiced, is of limited effectiveness.
Forty-six American states require continuing legal education (CLE), and eleven of these states now require lawyer ABT as one facet of CLE requirements. I have previously criticized the mandatory CLE system because so little evidence supports the conclusion that it results in more competent lawyers. The central question tackled by this essay is whether there is any reason to believe that ABT requirements have had or will have any more impact on bias in the law than general CLE requirements have had on lawyer competence. The answer, unfortunately, seems to be no, or at least not as ABT requirements are currently defined and regulated.
Part I of this essay summarizes the very real problems that mandatory lawyer ABT aims to address: bias in the legal profession and bias against individuals caught up in the legal system. Part II describes the debate over mandatory lawyer ABT and the various requirements imposed by adopting states. Part III addresses the lack of empirical evidence or other reason to believe mandatory lawyer ABT is an effective response to bias in the law. Finally, Part IV considers an alternative path for mandatory lawyer ABT, one that engages in ABT research and responds to that research in ways that result in more intentional and meaningful ABT going forward
The World Health Organization was born as a normative agency: Seventy-five years of global health law under WHO governance
Get PDFThe World Health Organization (WHO) was born as a normative agency and has looked to global health law to structure collective action to realize global health with justice. Framed by its constitutional authority to act as the directing and coordinating authority on international health, WHO has long been seen as the central actor in the development and implementation of global health law. However, WHO has faced challenges in advancing law to prevent disease and promote health over the past 75 years, with global health law constrained by new health actors, shifting normative frameworks, and soft law diplomacy. These challenges were exacerbated amid the COVID-19 pandemic, as states neglected international legal commitments in national health responses. Yet, global health law reforms are now underway to strengthen WHO governance, signaling a return to lawmaking for global health. Looking back on WHO’s 75th anniversary, this article examines the central importance of global health law under WHO governance, reviewing the past successes, missed opportunities, and future hopes for WHO. For WHO to meet its constitutional authority to become the normative agency it was born to be, we offer five proposals to reestablish a WHO fit for purpose: normative instruments, equity and human rights mainstreaming, sustainable financing, One Health, and good governance. Drawing from past struggles, these reforms will require further efforts to revitalize hard law authorities in global health, strengthen WHO leadership across the global governance landscape, uphold equity and rights at the center of global health law, and expand negotiations in global health diplomacy
Blinded by the Light: Resolving the Conflict Between Satellite Megaconstellations and Astronomy
Get PDFThe sudden emergence of large constellations of small satellites in low altitude orbits represents one of the most dramatic contemporary innovations in outer space. Promising low-cost, low-latency global communications and spectacular capacities for remote sensing of the Earth, these satellites will soon number in the tens of thousands, sponsored by diverse corporations and countries around the world. But this proliferation of spacecraft comes at a steep cost in unavoidable interference with ground-based astronomy: as the satellites overfly the observatories, they block the views of remote objects and phenomena, leaving obliterating white streaks on the collected imagery, and obscuring access to troves of vital data from distant sources of cosmic light and radio waves.
To date, the world has been proceeding on the implicit assumption that the law of outer space essentially licenses the satellite operators to proceed however they wish in this matter, with little required consideration for the losses inflicted upon astronomy and the myriad scientific missions. There have been some modest, voluntary efforts at mitigation of the interference effects, but nothing sufficient or reliable has been effectuated.
This Article describes the incipient clash between satellite megaconstellations and astronomy, assesses the relevant international and domestic legal authorities, and proposes compromise solutions to mitigate the damage. Overall, the thesis is that a better balance--meaningfully informed by the Outer Space Treaty--must be struck between these competing types of space activities, without ceding to either a comprehensive right to proceed in disregard of the key functions of the other
Converse-\u3ci\u3eOsborn\u3c/i\u3e: State Sovereign Immunity, Standing, and the Dog-Wagging Effect of Article III
Get PDF“[T]he legislative, executive, and judicial powers, of every well-constructed government, are co-extensive with each other . . . [T]he judicial department may receive from the Legislature the power of construing any . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: The federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the opposite direction: If the federal courts lack the constitutional power to adjudicate cases based on certain types of substantive federal statutes, the legislature must lack the power to enact the statute in the first place. This converse operation of the Osborn axiom is reflected in the Court’s decisions on the Eleventh Amendment and state sovereign immunity over the past two decades. Recent standing decisions, including most recently TransUnion LLC v. Ramirez, may reflect a similar doctrinal trajectory in the Court’s standing jurisprudence.
The Eleventh Amendment is, by its terms, a limitation of the jurisdiction of the federal courts. Until the Court’s 1999 decision in Alden v. Maine, it was widely believed that sovereign immunity did not protect states from being sued in state courts. The Court’s precedents, in turn, established that Congress had the power to impose primary and remedial obligations on states. Although the Eleventh Amendment prevented enforcement of the states’ remedial obligations in federal court, the obligations were thought to be enforceable in state courts, subject to Supreme Court review. In Alden, the Court held that states also enjoy a constitutional immunity from being sued by private parties in their own courts without their consent. The Alden holding suggested that the immunity reflected in the Eleventh Amendment was not merely an immunity from the jurisdiction of the federal courts, but an immunity from being subjected by Congress to certain forms of liability. The Court’s post-Alden decisions, including its recent decisions in Allen v. Cooper and PennEast Pipeline Co. v. New Jersey, confirm that the states’ sovereign immunity is an immunity from congressionally imposed damage liability to private parties. Thus, a constitutional provision that purports to limit the jurisdiction of the federal courts has been read to reflect a constitutional limit on Congress’ substantive legislative power.
The Court’s recent decision in TransUnion LLC v. Ramirez may signal the start of a similar doctrinal trajectory in the context of Article III standing. Article III imposes outer limits on the power of federal courts to adjudicate cases at the behest of persons who have not suffered an “injury in fact.” The Court held some of the plaintiffs lacked standing to seek such damages in federal court because they had not suffered a “concrete” enough injury. Justice Thomas’ dissent noted that the majority’s decision was a pyrrhic victory for the defendant because the plaintiff could turn around and sue in state court, where Article III standing limits do not apply. It is true that standing limits based on Article III do not apply in the state courts. But this essay argues that the most plausible explanation for the Court’s holding is that Congress lacks the power to entitle persons to damage relief if they have not suffered an Article III injury in fact. If Congress had validly given the plaintiffs a right to damages from the defendant, and that right could be enforced in state courts, then the plaintiffs’ failure to receive the damages they claimed the defendant owed them would itself have been a sufficient “injury in fact” to support their standing in federal court. TransUnion can be reconciled with the well-established principle that a legal right to money is a sufficient interest to confer standing only if the Court is understood to have held that Congress lacked the power to create the right to damages it created in statute. But that means standing doctrine is not based on Article III. If understood as a holding that Congress did not validly create their right to damages because their injuries were insufficiently concrete, TransUnion would stand as another example of jurisdictional doctrines operating as a limit on Congress’ substantive legislative power
Confrontation, the Legacy of \u3ci\u3eCrawford\u3c/i\u3e, and Important Unanswered Questions
Get PDFThe right to confront has a long history. In the United States, the Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him[.]” One of the most troublesome areas of Confrontation Clause jurisprudence has been the Clause’s application to “hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption[.]” The Supreme Court’s confrontation analysis in this situation once hinged on the statement’s reliability, with the traditional hearsay rule and its exceptions and exemptions as a guide. But in Crawford v. Washington, the Court considered the right’s historical background and concluded that the analysis should instead be focused on testimoniality: unless the declarant currently testifies, “[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford intentionally eschewed defining “testimonial,” perhaps because it would have been challenging to anticipate the consequences of its testimonial approach in various circumstances without specific context. Subsequent cases have sought to interpret Crawford and further define “testimonial,” but many unanswered questions remain. The purpose of this article is to highlight certain important such questions
Designing and Developing a Medical-Legal Partnership to Address Cancer Patients\u27 Health-Harming Legal Needs
Get PDFThe Georgetown University\u27s Cancer Legal Assistance and Well-being Project launched in 2020 as a medical-legal partnership that works with health care providers at a Washington, D.C. safety-net hospital to treat the health-harming legal needs of historically and intentionally marginalized patients with cancer
Seventy-five Years of Global Health Lawmaking Under the World Health Organization: Evolving Foundations of Global Health Law Through Global Health Governance
Get PDFThe World Health Organization (WHO) has been shaped by global health law throughout its history. Drawing from the post-war establishment of global governance under the United Nations (UN), the modern foundations of global health law were laid by the WHO Constitution, which provided WHO with a range of normative authorities to realize its mandate as the UN’s directing and coordinating authority in global health. Yet WHO has faced political challenges in exercising these normative authorities to advance global health law, revealing the limitations of law as a foundation of global health governance. This article chronicles the 75-year evolution of global health law through WHO governance – beginning in the expansive authorities under the WHO Constitution, examining the political obstacles that long hobbled legal advancements, recognizing the revitalized space for law and policy in the twenty-first century, and analyzing the new limitations exposed by the COVID-19 pandemic response. Global health law reforms will be essential to strengthen global health governance. By analyzing how past challenges to global health law offer lessons for ongoing legal developments, this timely historical analysis offers lessons for WHO reforms to facilitate global solidarity
United States of America, \u3ci\u3ein\u3c/i\u3e The Forum of Federations Handbook on Local Government in Federal Systems
Get PDFMunicipalities in the United States (US), particularly those in its largest metropolitan areas, drive economic growth and innovation and are home to the majority of the nation’s population, but their political status under the federal constitutional system of divided government is relatively weak. That does not mean US cities lack political power; it means that the federalist structure weakens, rather than enhances, city power. The US Constitution does not even mention cities, and the US federal structure has not evolved to reflect ‘city power’. There is a mismatch between the rise of cities on the global stage and their role in the constitutional and federal structure of the US. The tension between localism, regionalism, and nationalism has growing salience in US political discourse. This chapter focuses on how local governments exercise power most effectively, whether internally or through a complex matrix of intergovernmental relationships, private-sector dealings, and civil society organisations
Access to Justice as Access to Data
Get PDFThis Keynote Address, delivered in celebration of the launch of SCALES, discusses the importance of making local and state court data available for research on the functioning of the American civil justice system. It describes the regulatory and administrative challenges of obtaining good-quality data from courts. It calls for a concerted effort among researchers and policymakers to develop open-source technologies for the development of case management systems and data infrastructure. And it urges researchers to foster a collaborative research ecosystem based on broadly sharing court data
Safe Babies, Safe Moms: A Multifaceted, Trauma Informed Care Initiative
Get PDFPurpose
This report describes a multifaceted, trauma-informed initiative developed to address racial/ethnic maternal and infant health inequities in Washington, D.C.
Description
Structural racism and systemic oppression of marginalized communities have played a critical role in maternal and infant health inequities in the United States. Black birthing individuals are exponentially more likely to experience adverse birth outcomes, including preterm birth, low birth weight and maternal mortality. In response to these statistics, the Safe Babies Safe Moms (SBSM) initiative was developed to support patients of marginalized identities and improve health outcomes. SBSM Women’s and Infants’ Services Specialty Care (WIS-SC) is one component of this initiative focused on perinatal services.
Assessment
SBSM WIS-SC includes trauma-informed clinical services, nurse navigation, lactation, diabetes and nutrition education, social work services, medical-legal services, and behavioral health support. Services are delivered by a multidisciplinary team trained on the following domains: (1) building connection within diverse care teams; (2) recognizing systemic barriers to trauma-informed approaches; (3) learning the brain science of implicit bias, trauma, and resilience; (4) Integrating self-care practices; and (5) acknowledging progress. Since the inception of the program, SBSM WIS-SC has served over 1500 patients.
Conclusion
The SBSM WIS-SC intervention reflects a patient-centered approach to care, offering the multidisciplinary services required for perinatal patients with complex medical, psychosocial, and legal needs. Trauma informed training and team building is foundational to successful service delivery to address these multifaceted health needs of historically marginalized perinatal populations nationwide