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The Synergy of Legal and Medical Palliative Care: Challenges and Opportunities in Palliative MLP and the Yale Experience
No full textPalliative care and medical-legal partnership are complementary disciplines dedicated to integrating care to treat the whole patient and intervening before a legal or medical issue is at a crisis point. In this paper, we discuss the founding and operations of the Yale Palliative Medical Legal Partnership, give examples of typical cases, explain special considerations in this area of law, and propose areas for further research
The Critique of Carceral Feminism
No full textVol. 34.2:55Few scholarly arguments incense self-identified feminists—especially prominent ones—as much as the claim that feminism contributed to the racist, inhumane, and overbroad American penal system. Over the years, scholars from outside and within feminism have offered various historical, philosophical, and genealogical analyses of the feminist movement’s relationship to mass incarceration. These writings assert that powerful feminist ideologies and groups contributed materially to the growth
of the criminal punishment system and served as powerful legitimators of penal authority in the last several decades. Critics of “carceral feminism” argue that feminists collaborated with the carceral state, often unintentionally, by among other things cementing raced and gendered narratives of crime victimhood, giving bipartisan credence to policing and prosecution programs, reinforcing the notion that the criminal system “works,” and bolstering the neoliberal precept that violence stems from individual choices rather than structural conditions
Ocean Governance in the 21st Century: A “New Package-Deal”
No full textVol. 48This Article demonstrates how technological innovation and climate
change, specifically the introduction of unmanned vessels, artificial islands, and
rising sea levels, undermine the balance between exclusive and inclusive rights
under current ocean governance, thus triggering a process of regime evolution.
Through the application of policy-oriented jurisprudence, this Article proposes
to shift ocean governance from its outdated reliance upon the natural land as a
source of rights and obligations to a more nuanced approach that facilitates a
more optimal global order. First, having demonstrated that the natural land is no
longer a stable and predictable source of title, this Article proposes that the “Land
Dominates the Sea” principle should evolve to a model premised on an alternate
conceptualization: “Population Dominates the Sea.” This proposal challenges
the foundation of the law of the sea and suggests that legal responses to artificial
islands and submerging land should be treated together to facilitate a
compromise solution detached from the outdated reliance on natural land.
Second, this Article argues that the exclusive economic zone should evolve from
a regime of enumerated rights in the spatial area to include rights to the spatial
area in order to augment environmental protection and national security while
promoting the benefits of unmanned vessels. While there are many possible
arrangements that may be pursued by the participants involved, the changes to
the law of the sea must balance their goals and interests in a “new package-deal.
Memory Games: Dobbs's Originalism as Anti-Democratic Living Constitutionalism--and Some Pathways for Resistance
No full textThis Article examines originalism's role in overruling Roe v. Wade in Dobbs v. Jackson Women's Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism's authority, as do originalism's appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism's authority, this Article shows that the conservative legal movement has practiced originalism as a form of living constitutionalism that makes our constitutional order less democratic in several important ways. To demonstrate how this is so, this Article returns to originalism's roots in the Reagan years and examines originalism's origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time--and continuously ever since--the Republican Party's platform promised that "[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life." I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it. This Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs "living constitutionalist") and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs's living constitutionalism serves contemporary movement goals: the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan Administration. The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past--entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court
Fostering the Intellectual Virtue of Civility in Online Contexts
No full textCivility provides norms for engaging in discourse on topics that yield harm or benefit to others, affect the conditions of our lives, and drive public policy—in short, on topics that matter, morally and politically. While discourse on moral and political matters is already difficult in face-to-face and interpersonal conversations, online interactions through social media pose unique challenges for interactions and exchanges. Using research from philosophy, psychology, behavioral economics, and computer science, I explain how the intellectual virtue of civility can be fostered within individuals as a developed trait of internalized norms to guide how one engages with others when evaluating beliefs and contentious issues. Like the development of any virtue, the development of civility takes time, practice, and effort, but it can be fostered even in online contexts through the careful contextualization of experience and practiced behaviors. Altering tech design through the use of goal setting, nudges, gamification, and in-group priming allows for repeatable behaviors to be practiced and modified. Shifting from a focus on policies for content moderation to a focus on users’ choices within online interactions—and deeper consideration for how designs affect users’ options, choices, and agency—allows us to capitalize on insights from moral psychology and education to see new ways forward in combatting incivility in online contexts
Law and Redemption: Expounding and Expanding Robert Cover’s Nomos and Narrative
No full textVol. 34:2This Article explores two interrelated themes that distinguish much of Robert Cover’s scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover’s, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover’s foundation, this Article further examines the transformative power of law in Jewish tradition, using examples that illustrate Cover’s redemptive vision for the law. The unrealized redemptive potential of the American legal system ultimately reflects the failure of American law and society to grapple with our past wrongs, a necessary first step on the bridge to Messianic harmony
SOCIAL NORMS AND INSIDER TRADING
No full textInsider trading is a somewhat misleading term. To the extent
that the phrase is supposed to connote improper and unethical
trading, it is both overinclusive and underinclusive. The term insider
trading is overinclusive because not all trading by corporate insiders
is improper or unethical. After all, insiders often trade while not in
possession of any valuable or material information about the
company whose shares they are trading. The term insider trading is
underinclusive because it frequently is the case that trading by
outsiders, i.e., those who have no connection with the company
whose shares are being traded, is improper and unethical. A clear
example of such trading is trading by government officials and
legislators on the basis of nonpublic information obtained in the
course of their official duties
Some Notes on George Eliot
No full textVol. 34-1It will be found true, I think, of the works of every mastermind that there is in them some recurring note, some theme, some refrain, that stamps the author’s personality upon them, and forms a principle of unity throughout them all.1 It may be simply by some distinctive line of thought, it may be merely by a prevailing mental tone, that nature thus reveals how one-sided are the broadest minds, and proves how narrow, after all, are the best and the greatest of mankind. For a great truth paralyzes as well as inspires. It limits as well as exalts. Minds that have felt its full influence are, as Mr. Lowell would have said, possessed by it; they do not possess it. They are in its power; it is not in theirs. And so it comes to pass that, in many cases, at least, a tendency toward repetition in an author is a token, not of sterility, but of strength. It marks the sincerity, the truth of his convictions; it shows that his writings stand for thoughts that have become imbedded in his being; and thus we can judge him, if not more favorably, at least with a keener sympathy. Thoughts, as Emerson so clearly saw, are rarer possessions than most of us seem to fancy; and only by stress and toil and wear of spirit can one of them be made our own. The rest that receive the name are, in fact, mere outgrowths of these central ideas of our being; and we ought hardly to quarrel with those who have the frankness to show us these ideas, running through all their works, colouring all their conceptions, and yielding them an infallible test of truth and beauty
“Death by Bureaucracy”: How the U.S. State Department Used Administrative Discretion to Bar Refugees from Nazi Europe
No full textVol. 34:2During the Nazi era, the United States could have remained within
overall and country-by-country quotas limiting immigration and still have
admitted an additional 350,000 refugees from Germany and Germanoccupied
or -allied countries. Instead, the State Department, whose
consular officers abroad decided whether visas were to be issued, denied
them to hundreds of thousands seeking refuge between 1933 and 1945.
Largely untethered by judicial or public oversight, consular officials
deployed their discretion in a way that produced direct and often deadly
consequences for the mostly Jewish refugees. This episode has been largely
overlooked in histories of administrative or immigration law, and
minimized in historical accounts focused upon congressional intransigence
and presidential acquiescence in failing to change the statutory scheme. Its
meaning has been lost in the gap between disciplines. This article seeks to
bridge the divide by showing how State Department officials used the
discretion afforded them under the immigration statute and through judicial
decisions to implement an anti-foreign, antisemitic policy. Understanding
the multiplicity of decisions officials faced gives lie to the oft-repeated
refrain that the law in the form of an impenetrable statute dictated the
result. Reviewing the history also demonstrates the power of the “law made
me do it” claim, as it persists decade after decade, despite overwhelming
evidence that “the law” did no such thing. This tragic case study ultimately
illuminates the need for historians to develop a better understanding of law,
and for legal scholars to gain a better understanding of history
