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Public Health in the Age of Ebola in West Africa
Get PDFThe Ebola epidemic, with its fast-growing toll and real potential for spreading into much of Africa, including major cities, has the makings of a “Black Swan” event. Such events, using the term coined by Nassim Nicholas Taleb, are: 1) unpredictable, outside the realm of regular expectations; 2) have a major impact, and; 3) are rationalized after the fact as being explainable and predictable.
We have learned from this outbreak the potential for an infectious disease to be politically, economically, and socially destabilizing, and that what kills us may be very different from what frightens us or substantially affects our social systems. This has important implications for resource allocation. Health threats like Ebola may not have historically have not killed large numbers of people, but because of possible scenarios under which they can have a devastating impact, require a greater share of limited resources, such as for developing a vaccine. More creative imagination is needed in considering future infectious disease scenarios and in planning accordingly.
Further, this Ebola epidemic could transform global governance for health. It demonstrates the need for fundamental reform at the WHO, including for greater funding, as WHO\u27s response–unable to mobilize sufficient funding, too slow to declare this a Public Health Emergency of International Concern–indicates that the Organization is presently poorly positioned to fulfill its constitutional role as the global health authority. Meanwhile, the leadership role that the United Nations is assuming suggests the emergence of an era of direct United Nations engagement in health threats that could destabilize nations and regions
Public Health in the Age of Ebola in West Africa
Get PDFThe Ebola epidemic, with its fast-growing toll and real potential for spreading into much of Africa, including major cities, has the makings of a “Black Swan” event. Such events, using the term coined by Nassim Nicholas Taleb, are: 1) unpredictable, outside the realm of regular expectations; 2) have a major impact, and; 3) are rationalized after the fact as being explainable and predictable.
We have learned from this outbreak the potential for an infectious disease to be politically, economically, and socially destabilizing, and that what kills us may be very different from what frightens us or substantially affects our social systems. This has important implications for resource allocation. Health threats like Ebola may not have historically have not killed large numbers of people, but because of possible scenarios under which they can have a devastating impact, require a greater share of limited resources, such as for developing a vaccine. More creative imagination is needed in considering future infectious disease scenarios and in planning accordingly.
Further, this Ebola epidemic could transform global governance for health. It demonstrates the need for fundamental reform at the WHO, including for greater funding, as WHO\u27s response–unable to mobilize sufficient funding, too slow to declare this a Public Health Emergency of International Concern–indicates that the Organization is presently poorly positioned to fulfill its constitutional role as the global health authority. Meanwhile, the leadership role that the United Nations is assuming suggests the emergence of an era of direct United Nations engagement in health threats that could destabilize nations and regions
Some Thoughts on the Fundamentals of an Evidence Code From the U.S. American Perspective
Get PDFIn the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court)
The Legacy of Ronald Dworkin (1931-2013): A Legal Theory and Methodology for Hedgehogs, Hercules, and One Right Answers
Get PDFIn this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy (or philosophy of law) and legal theory (or theory of law), on the one hand, and its relationship to methodology, on the other hand; later by pointing out the main methodologies available to legal theories, following the distinctions between descriptive and prescriptive or normative, on one side, and, general and particular, on the other; then by revisiting Dworkin’s model, which he characterizes as constructive, interpretive (and even argumentative), evaluative and integrative; and, concludes by reconsidering in this light the one right answer thesis
The Constitution and Legislative History
Get PDFIn this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.
This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply—after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should be of greater concern to a variety of constitutional theorists, particularly those who embrace theories of popular and common law constitutionalism, but as well to originalists.
In part II, the author considers the textualist arguments against the constitutionality of legislative history. Article I, Section 7 provides that any bill must pass the House and the Senate and be presented to the President for veto or signature. As a number of textualists have argued, legislative history is not passed by both houses or signed by the President. Call this the “bicameralism argument.” Her answer to the bicameralism argument lies in a constitutional text that statutory textualists seem to have forgotten: Article I, Section 5 gives explicit power to Congress to set its own procedures, a power that gives legitimacy to legislative history created pursuant to those procedures. In fact, new developments in statutory interpretation theory (decision process theory) suggest that, in some cases, the only way to resolve textual conflict is to consider legislative procedure.
In part III, the author considers a second prominent argument against the constitutionality of legislative history: non-delegation. Critics argue that Congress may not delegate the “legislative power” granted under the Constitution to members or committees, as only the entire Congress may constitutionally exercise that power. Call this the “non-delegation” argument. Again, her response is based on constitutional text: Article I, Section 5 specifically sanctions delegation to less than the whole of Congress; more importantly, there is no general norm against self-delegation stated explicitly or even implicitly in the Constitution. Finally, the author suggests that there is a certain inconsistency in the assertion of these claims: the non-self-delegation and bicameralism arguments can both be used to indict canons of construction, which textualists offer as the leading alternative to legislative history, but which have no supporting text comparable to Article I section 5 in the Constitution.
In part IV, she considers arguments that judges’ use of legislative history violates the separation of powers because it allows the legislature to exceed the bounds of the “judicial power.” This argument can rather easily be turned on its head: in the quotations offered at the beginning of this article, members of Congress argue that judges are exercising the “legislative power” when they rewrite statutes without considering legislative history. As has been argued at length elsewhere, the use of “adjectival” argument in structural controversies—relying upon the terms “legislative, executive, and judicial”—perpetuates a weak understanding of the separation of powers, and one that the Constitution’s own text belies. The separation of powers does not prevent recourse to legislative history; in fact, as the article explains, blindness to legislative history may create different kinds of structural risks—risks to federalism, rather than risks to the separation of powers.
Finally, in part V, the author concludes by suggesting that we should retire the strong form of the legislative history unconstitutionality argument, by which she means the claim that the constitution bars any and all legislative history. Instead, we should far more actively interrogate serious questions about the use of legislative history in particular cases. Can it really be wise—or even constitutional—for a judge to impose a meaning on an ambiguous statute with reference to the state-ments of a filibustering minority, or privilege some texts in ways that violate Congress’s rules? Fidelity to Congress, and the importance of Congress’s constitutional rules—what Francis Lieber once called the “common law” of the Congress—has yet to be theorized within this more pressing, but particular, sphere
Elementary Statutory Interpretation: Rethinking Legislative Intent and History
Get PDFThis article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts—legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act—their procedures. Once one accepts this position, we must rethink the very concept of legislative history. Legislative history is not a search for a mental state, behind the words, but a search for decisional context. We should give up talking about legislative history, replacing it with the far more helpful notion of legislative decision and statutory context
Tax Advisors and Conflicted Citizens
Get PDFThousands of lawyers are involved every day in advising clients outside of litigation. These lawyers counsel clients on how they can benefit from or avoid violating statutes, regulations, and other sources of law. How should we think about the obligations of the lawyer in this setting? This article argues that we should eschew a single prescriptive model of the advisor in favor of a pluralistic conception that bases responsibilities on the salient factors of the context in which the advisor operates.
The model of the advocate that suggests that the lawyer take a relatively aggressive approach to interpreting the legal provisions applicable to a client in order to maximize the client’s freedom of action. While an advisor who acts as an advocate may focus on either the letter or the spirit of the law in order to serve the client’s purposes, advisors who act as advocates in the regulatory context often focus on the literal terms of the law to help the client engage in what they is called “creative compliance.” This involves structuring transactions, relationships or entities according to the letter of the law in a way that allows the client to avoid as much of the substantive impact of regulation as possible.
An alternate conception of the advisor is as a trustee of the legal system who assumes some responsibility for ensuring its integrity as a mechanism for ordering social life. The trustee is inclined to go beyond creative compliance in counselling clients. She therefore is generally more likely than the advocate to see herself as having an obligation to ensure that the client complies with not only the letter of the law but its spirit.
The models of the advocate and the trustee each speak to important features of the relationship between government and citizens in the regulatory setting. Different regulatory regimes may possess different features that impose different obligations on lawyers who advise on them.
I analyze the provision of tax advice as an example of a particular regulatory regime that acknowledges the claims of both the advocate and the trustee. Tax advice is an especially notable advisory practice setting because tax advice is a practice setting in which there are powerful strains of argument for an advisor to assume the roles of both advocate and trustee.
This reflects the potentially conflicting roles of the taxpayer as a private and a public citizen. The private citizen jealously protects her property and is suspicious of government’s claims on it. The public citizen appreciates that the state cannot function to protect property or liberty unless all taxpayers contribute their fair share of revenues. A tax advisor who assumes an adversarial posture toward the state advances a citizen’s private interest but may do so at the expense of her public identity. An advisor who embraces the model of the trustee may provide assurance that the needs of the public citizen will be met, but may risk providing insufficient protection for the private citizen against state power by resolving all close questions in favor of the government. As the article discusses, this ambivalence about taxation is reflected in the regulation of taxpayer and advisor conduct
Things We Do with Presumptions: Reflections on \u3ci\u3eKiobel v. Royal Dutch Petroleum\u3c/i\u3e
Get PDFThe author argues in part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. He argues further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court’s opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.
Even when the presumption against extraterritoriality is applicable, courts will not always conclude that the statute does not apply extraterritorially. Although the courts presume that Congress meant for the statute to apply only domestically, that presumption can be rebutted or overcome. The usual way in which the presumption can be rebutted or overcome is through sufficient evidence that Congress meant for the statute to apply extraterritorially. In some cases, the Court has focused exclusively on the statute’s text, suggesting that the presumption against extraterritoriality is a clear statement rule that can be overcome only by clear statutory language. But, in Morrison v. National Australia Bank Ltd., the Court recognized that “context” can be taken into account as well. And, in Kiobel, the Court recognized that a statute’s “historical background” might also “overcome” the presumption. These methods of rebutting or overcoming the presumption are discussed in part II.
When a court finds the presumption applicable and not rebutted or overcome, it must determine whether the statute applies to the particular case before it. As the Court recognized in Morrison, a non-extraterritorial statute might reach a case based on conduct that is partly foreign and partly domestic. Applying the presumption in such a case, the Court explained, requires identification of “the ‘focus’ of congressional concern” under the relevant statute. If the statute is non-extraterritorial, the conduct that was the focus of congressional concern must have occurred in the United States. When a court determines the statute’s applicability to the facts of a particular case, it might be said to be determining whether the presumption has been satisfied in the particular case. How to satisfy the presumption is discussed in part III.
The Court in Kiobel may have recognized a fourth thing that might be done with the presumption against extraterritoriality: the presumption might in certain circumstances be displaced. The majority used this term in the final paragraph of its opinion, a paragraph that has generated much debate about what sorts of questions the Court left open in Kiobel. The Court wrote that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” The Court may have been using the term to refer to the issue I have refer to as the “satisfying” of the presumption. There is also some basis, however, for understanding the Court to have left open the possibility that the presumption might be inapplicable or rebutted with respect to some claims brought under the ATS for violations of customary international law. What the Court meant by “displacing” the presumption is the subject of part IV
The Rise and Fall of Unconscionability as the \u27Law of the Poor\u27
Get PDFWhat happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. In the face of incisive criticism, judicial enthusiasm for the doctrine of unconscionability quickly faded. A new consensus emerged in favor of legislation requiring better disclosure of consumer contract terms ex ante, rather than ex post judicial review.
This article presents a different narrative, one that is informed by extensive research in previously untapped archival sources. In this story, the wise legislature does not overrule the misguided courts. On the contrary, it reveals that lawmakers laid the groundwork for the judicial revival of unconscionability, and then rewrote statutory rules to codify the ensuing court decisions. In the District of Columbia, home to the famous Williams v. Walker-Thomas Furniture Co. litigation, the legislature revived unconscionability through the enactment of the Uniform Commercial Code (U.C.C.), which reintroduced the once-archaic doctrine into the legal vernacular. Just as the U.C.C. drafters intended, unconscionability review allowed courts to do openly what they had been doing covertly for years—refuse to enforce harsh, one-sided bargains as written. In 1965, the D.C. Circuit seized the opportunity unconscionability offered to prevent the loss of a poor woman’s furniture. But the Williams litigation also did something more. It drew public attention to the controversy before the court and alerted D.C. lawmakers to a recurring problem in need of a legislative fix. In response, local leaders set to work drafting consumer credit reform legislation. Lawmakers eventually adopted a firm set of rules to govern “installment” sales contracts in the District of Columbia, including a ban on the objectionable contract term at issue in Williams.
In this narrative, judges and legislators did not advance competing regulatory visions. They agreed on the need for substantive limits on installment sales to poor borrowers. Moreover, contrary to what some scholars might predict, litigation did not divert scarce resources down a dead-end path. Rather, it catalyzed the process of legislative change, raising public consciousness of problems in the low-income marketplace and fueling the drive for substantive reforms on the local level.
Appendix A provides the full text of the Walker Thomas Furniture Company contract
Unsatisfying Wars: Degrees of Risk and the \u3ci\u3eJus ex Bello\u3c/i\u3e
Get PDFSelf-defensive war uses violence to transfer risks from one’s own people to others. We argue that central questions in just war theory may fruitfully be analyzed as issues about the morality of risk transfer. That includes the jus ex bello question of when states are required to accept a ceasefire in an otherwise-just war. In particular, a “war on terror” that ups the risks to outsiders cannot continue until the risk of terrorism has been reduced to zero or near zero. Some degree of security risk is inevitable when coexisting with others in the international community, just as citizens within a state must accept some ineradicable degree of crime as a fact of community life.
We define a conception of morally legitimate bearable risk by contrasting it with two alternatives, and argue that states must stop fighting when they have achieved that level. We call this requirement the Principle of Just Management of Military Risk. We also argue that states should avoid exaggerated emphasis on security risks over equivalent risks from other sources—the Principle of Minimum Consistency Toward Risks. This latter principle is not a moral requirement. Rather, it is a heuristic intended to correct against well-known fallacies of risk perception that may lead states to overemphasize security risks and wrongly export the costs of their security onto others. In conclusion, we suggest that states must invest in non-violent defensive means as a precondition for legitimately using force externally