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Behavioral Ethics, Behavioral Compliance
Get PDFThe design of an effective legal compliance system for an organization fearing prosecution for white-collar crime or regulatory violations requires skill at predicting human behavior. It is entirely plausible to use the economist’s simplifying assumptions of rational choice and pecuniary self-interest in making these predictions. But the realism of these assumptions has been under attack for decades now, suggesting that we should at least consider more nuanced behavioral possibilities when designing and implementing compliance programs. The label “behavioral compliance” can be attached to the design and management of compliance that draws from this wider range of behavioral predictions about individual and organizational behavior. As in conventional economics, incentives matter. Indeed, a core portion of work in the psychology of ethical choice explains how and why people can behave selfishly or cheat but do not construe their own behavior as bad or wrong. If that is so, their (or their team’s) moral compass becomes unreliable as a matter of self-regulation, a particularly frustrating insight in the compliance realm: good people doing bad things. But human nature is complex. This chapter surveys some of the contemporary research in what has become known as behavioral ethics, and its relevance to the practice of compliance
Priority-Setting, Cost-Effectiveness, and the Affordable Care Act
Get PDFThe Affordable Care Act (ACA) may be the most important health law statute in American history, yet much of the most prominent legal scholarship examining it has focused on the merits of the court challenges it has faced rather than delving into the details of its priority-setting provisions. In addition to providing an overview of the ACA’s provisions concerning priority setting and their developing interpretations,this Article attempts to defend three substantive propositions.
First, I argue that the ACA is neither uniformly hostile nor uniformly friendly to efforts to set priorities in ways that promote cost and quality.
Second, I argue that the ACA does not take a single, unified approach to priority setting; rather, its guidance varies depending on the aspect of the health care system at issue (Patient Centered Outcomes Research Institute, Medicare, essential health benefits) and the factors being excluded from priority setting (age, disability, life expectancy).
Third, I argue that cost-effectiveness can be achieved within the ACA\u27s constraints, but that doing so will require adopting new approaches to cost-effectiveness and priority setting. By limiting the use of standard cost-effectiveness analysis, the ACA makes the need for workable rivals to cost-effectiveness analysis a pressing practical concern rather than a mere theoretical worry
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
Two Excursions Into Current U.S. Supreme Court Opinion-Writing
No full textIn 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
Strengthening the Detection of and Early Response to Public Health Emergencies: Lessons from the West African Ebola Epidemic
Get PDFBackground
In the year since the World Health Organization (WHO) notified of an Ebola outbreak in West Africa, more than 24,000 cases have been reported and over 10,000 individuals have died. Moreover, countless non-Ebola deaths have occurred as a result of health system closings and an international aid effort in the $USD billions has been invested in control efforts. While the international response to the West African Ebola virus disease epidemic eventually exemplified the great potential of the global public health community, the protracted early response also revealed critical gaps, which likely resulted in exacerbation of the epidemic. It is incumbent on international health partners to learn from missteps that occurred in the early stages of the epidemic and strengthen our public health capacity to better respond to future public health emergencies.
Findings and Recommendations
Strategies to consider to improve capacity to respond global health emergencies include: 1) development of a more precise system to risk stratify geographic settings susceptible to disease outbreaks, 2) reconsideration of the 2005 International Health Regulations Criteria to allow for earlier responses to localized epidemics before they reach epidemic proportions, 3) increasing the flexibility of the World Health Organization director general to characterize epidemics with more granularity, 4) development of guidelines for best practices to promote partnership with local stakeholders and identify locally acceptable response strategies, and, most importantly, 5) making good on international commitments to establish a fund for public health emergency preparedness and response.
Conclusions
The recent success of the global action to stem the Ebola virus disease epidemic is laudable but should not encourage complacency in our efforts to improve the global public health infrastructure. The current epidemic has revealed both the danger posed by disease outbreaks in states with weak health systems and their widespread impact in an increasingly globalized world. The power of global health law and global health institutions will remain seriously unrealized and deeply compromised if the Ebola epidemic does not spur fundamental reform
Freedom of the Church and our Endangered Civil Rights: Exiting the Social Contract
Get PDFIn this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants—the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it
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
Middle East Respiratory Syndrome: A Global Health Challenge
Get PDFBeginning in May 2015, Middle-East respiratory syndrome (MERS) experienced its first publicly reported “super-spreading” event in South Korea. By mid-June, more than 120 cases and 11 deaths in South Korea had been linked to a businessman returning from travel to Bahrain, United Arab Emirates, the Kingdom of Saudi Arabia and Qatar. Globally more than 1200 had been infected of whom more than 450 died—a high fatality rate of 37%.
What are the most effective legal, social, and public health responses to MERS and other emerging diseases? First, the World Health Organization’s International Health Regulations (IHR) did not effectively guide the MERS outbreak. The IHR, the governing framework for global health threats, should be amended to allow for graduated alert levels and building health system core capabilities.
Second, MERS, like all emerging health threats requires a strategic and measured public health response, including government transparency, protection of health workers and robust infection prevention and control, humane isolation and quarantine measures, travel restrictions that adhere to WHO guidance, and school closures only when strictly necessary.
Third, international rules and governance must effectively address the contentious history of “ownership” of MERS-CoV. There are glaring gaps in the international system for equitable virus sharing and assertion of intellectual property rights over biological materials and genetic viral sequences.
Finally, we propose the development of robust health systems throughout the world to contain the spread of MERS-CoV—as well as the next infectious disease threat
Seg Academies, Taxes, and \u3ci\u3eJudge\u3c/i\u3e Ginsburg
Get PDFThis essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination
Interpreting Liberty and Equality Through the Lens of Marriage
Get PDFIn this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but which this Court positions as closely linked to respectability. Dignity and marriage are interwoven in the Court’s analysis, creating implicit bounds for liberty and equality. As a result, access to a legal status of enormous material and cultural value appears to be as closely linked to social conformity as to law.
Looking to the near future, I point out that, despite the breadth of its language, Obergefell leaves three important questions unanswered: whether the Court’s liberty analysis will extend to non-marital intimate relationships; whether the Court’s equal protection holding will suffice to prohibit discriminatory government policies that do not trench on fundamental rights; and whether there is a commensurate fundamental right not to marry without forfeiture of public benefits that favor persons who choose to marry. These are among the next frontiers in the field of state regulation of sexuality and adult relationships. From a law and social movements perspective, the achievement of equal access to marriage raises for the LGBT rights movement the same question long faced by other civil rights movements: whether and how to seek more robust understandings of equality under law. Obergefell marks an important step forward in efforts to end discrimination, which merits celebration, but it raises as many questions as it answers