18512 research outputs found
Sort by
A Feminist Defense of Transgender Sex Equality Rights
No full textVol. 34.2:88An emerging direction in sex equality law—one I have taught and
sought for decades for both sexual orientation and transgender rights—is that
discrimination against trans people is discrimination on the basis of sex, that
is gender, the social meaning of sex. The Bostock decision recently recognized the simplest version of the argument.
This recognition does not, contrary to allegations of anti-trans self-identified feminists, endanger women or feminism, including what some in this group call “women’s sex-based rights.” To begin with, women—in the United States anyway—do not have “sex-based rights” in the affirmative sense some in this group seem to think. We do have (precious few) negative rights to be free from discrimination on the basis of sex— which has almost always meant gender, actually—and so do men. If this invented term means a right to single-sex education for women, as against co-education, it has been on the thinnest possible legal ice for decades under the hegemony of gender neutrality. It may be that women’s schools continue to exist largely because no case challenging them has reached the Supreme Court in a very long time. I support women’s colleges and am glad to see them admitting anyone who identifies as a woman and graduating anyone they admit (some girls become boys these days). But the weight of sex discrimination law, built to be gender neutral since Ruth Bader Ginsburg’s early cases, leans strongly against the constitutionality of women’s schools (and HBCUs under colorblindness), public or private
In the American Tempest: Democracy, Conspiracy, and Machine
No full textVol. 34:3No one can be certain precisely what “democracy” is, but everyone seems to agree that it is in danger. Since the beginning of the pandemic, warnings of “toxicity,” “vitriol,” and other ill humors infecting the body politic have invaded mass media and political discourse, while the foundations of our civic order—“truth,” “facts,” and “civility”—have been seen to erode to the point of collapse. Although the exact cause of the present rupture in the social and epistemic fabric is hard to pinpoint, many observers seem to agree that the internet is to blame. Online algorithms are found to spread “misinformation” and “disinformation,” while anointed experts attribute unexpected outcomes of public events, from election results to the verdicts in defamation suits, to online campaigns by malicious “bots.” A New York Times opinion piece from June 2021 warned readers against examining or analyzing claims found online, since the impulse towards curiosity “allows grifters, conspiracy theorists, trolls and savvy attention hijackers to take advantage of us.” The atmosphere of confusion and distrust not only pervades public discourse in the English-speaking world, but increasingly spills beyond it; the phrase “fake news” has entered, untranslated, into political discourse in France, where a law criminalizing false statements online fuels an acrimonious debate
The Constitutionality of Medicare Drug-Price Negotiation under the Takings Clause
No full textIn recent months, pharmaceutical manufacturers have brought legal challenges to a provision of the 2022 Inflation Reduction Act (IRA) empowering the federal government to negotiate the prices Medicare pays for certain prescription medications. One key argument made in these filings is that price negotiation is a "taking" of property and violates the Takings Clause of the US Constitution. Through original case law and health policy analysis, we show that government price negotiation and even price regulation of goods and services, including patented goods, are constitutional under the Takings Clause. Finding that the IRA violates the Takings Clause would radically upend settled constitutional law and jeopardize the US's most important state and federal health care programs
Doctrinal Forks in the Road: The Hidden Message of The Nature of the Judicial Process
No full textVol. 34-1Revisiting The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921, presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal “path,” or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases
Distorting the Reconstruction: A Reflection on Dobbs
No full textVol. 34.2:30History will likely record Dobbs v. Jackson Women’s Health Organization1 as the most devastating case of the Supreme Court’s 2021 term and perhaps one of the worst Supreme Court decisions of all time. However, the Dobbs decision offers an opportunity to revisit the damaged path to reproductive freedom, dating back to American slavery and bridge pathways forward with better understanding. This Essay offers a reflection on Dobbs, speaking to the origins of reproductive autonomy and justice concerns that preexisted Reconstruction. The Essay argues that by examining the antebellum archive, a different type of slavery and involuntary servitude comes into view, namely the involuntary reproductive servitude imposed on Black girls and women
DESIGNING EFFECTIVE BORDER CARBON ADJUSTMENT MECHANISMS: ALIGNING THE GLOBAL TRADE AND CLIMATE CHANGE REGIMES.
No full textPolicy work in both the United States and the European Union ("EU") is underway on how best to structure border carbon adjustment ("BCA") mechanisms to protect the competitiveness of domestic industries while these enterprises make investments in reducing their greenhouse gas ("GHG") emissions. Often, these investments are costly for domestic industries, and may therefore result in lost sales in a global marketplace where companies in other jurisdictions face no parallel obligation to address climate change and thus can bring products to the market at lower cost. Such shifts in sales and production not only cause economic harm and potential job losses in nations with high levels of commitment to climate change action but also result in carbon leakage--meaning that emissions are not ultimately reduced but rather shifted to nations with more limited GHG emissions control requirements. But while the United States and the EU share an ambition to use BCA mechanisms, they have embraced different approaches to BCA design and implementation. The European Commission has determined that the adjustment methodology should credit only explicit GHG pricing tools, including carbon taxes and GHG emission allowance trading schemes, in determining which exporting countries would escape BCA tariffs. On the other hand, the U.S. government believes that border adjustments should be based on a broader climate change policy calculus, which would consider a wider set of policies that reduce GHG emissions. In this Article, we develop a taxonomy of approaches to comparing policies in importing and exporting countries and identify the two options that are most feasible from a technical and political perspective--we call these two options explicit BCA mechanisms and effective BCA mechanisms. We then further analyze the strengths and weaknesses of these two approaches. In particular, we compare explicit versus effective BCA mechanisms on the basis of their environmental effectiveness, administrative efficiency, compatibility with World Trade Organization ("WTO") law, and political viability. We conclude that BCA mechanisms that compare effective GHG prices promise better environmental outcomes and are more likely to be found compatible with WTO law than BCA mechanisms that exclusively compare explicit GHG prices. In addition, we argue that, while implementing BCA mechanisms that compare effective carbon prices creates some additional administrative challenges, many jurisdictions have trade policy pricing experience that could be harnessed to address these potential obstacles
FORESEEABILITY CONVENTIONS
No full textHow has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinalfields. But for a century and more. critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum offoreseeability's puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived andjlourished, the Article proposes, not because it carries determinate meaning (it does not), but because lawyers, judges, andjuries have establishedfixes or backs-which in this Article we callforeseeability conventions-to settle what would otherwise be intractable foreseeability problems. Foreseeability conventions work because they give the concept meaning in particular fields and in discrete situations, furthering the law's basic goals in especially thorny categories of recurring cases. We describe two types of conventions: storytelling or narrative conventions, on the one hand, and per se conventions, on the other. We offer salient illustrations, relying especially on the law of torts, showing how the law substitutes rough-hewn proxies for impenetrable foreseeability questions. In closing, we propose that the conventions strategy for resolving indeterminacy is widespread and even pervasive in the law. We observe, too, that the conventions strategy is being put to use today in solving controversial, high-profile legal problems in our age of political and cultural division-even as social fracture risks undermining the tacit agreements on which doctrinal conventions rest
Targeting Health-Related Social Risks in the Clinical Setting: New Policy Momentum and Practice Considerations
No full textThe federal government is funding a sea change in health care by investing in interventions targeting social determinants of health, which are significant contributors to illness and health inequity. This funding power has encouraged states, professional and accreditation organizations, health care entities, and providers to focus heavily on social determinants. We examine how this shift in focus affects clinical practice in the fields of oncology and emergency medicine, and highlight potential areas of reform
FRAUD IN A LAND OF PLENTY
No full textThis Essay discusses the regulation of fraud in a developed economy and offers some explanations for why fraud appears to be on the increase. Ironically, regulation designed to combat fraud can actually increase fraud by attracting economic activity to fraud-ridden industries. In other words, regulation can create problems of its own by fostering the false perception that fraud is being addressed even when it is not. This analysis is relevant in the context of the current surge in sentiment to regulate cryptocurrencies in the wake of the FTX and Sam Bankman-Fried debacle. Such regulation threatens to attract more resources to cryptocurrency trading, which is a dubious proposition in light of the fact that cryptocurrencies produce little social value and merely transfer wealth rather than create it. The Essay discusses some of the reasons why fraud may be on the increase. First, strong market forces aimed at reducing managerial agency costs have had the unintended consequence of increasing the incentives of top corporate managers to commit fraud. The market forces both richly reward managers for generating strong returns for shareholders and severely punish managers for failing to reach investors' expectations regarding corporate performance. While these rich rewards and strong punishments serve the interests of shareholders and society, they also enhance executives' incentives to commit fraud. Another factor in the increase in fraud in financial markets has been the expansion of the concept of fraud. Historically, the term fraud was used to describe conduct that was truly egregious and involved purposeful deceit designed to provide the perpetrator with unlawful gains. As shown here, however, in the financial context the concept of fraud has been expanded to include behavior that is entirely inadvertent and benign. The expansion of the concept of fraud threatens to increase the incidence of traditional fraud by depriving the term "fraud" of its historic capacity for shaming because the prospect of being shamed is a significant deterrent to committing fraud
Statutory Structure
No full textThomas I. Emerson Prize
W. Eskridge, C. Jolls, J. Mashaw
Distinguished paper or project on a subject related to legislation.One of the least controversial tools of statutory interpretation the Supreme Court
employs is also one of its least examined: the use of a statute’s “structure.” For decades—but particularly
under Chief Justice Roberts—the Court has determined the meaning of ambiguous statutory
provisions through reference to the “structure,” “scheme,” or “plan” of a statute. Despite its
ubiquity in the Court’s opinions, however, structural argument in statutory interpretation has
gone largely unexamined by scholars. This Note attempts to fill that gap.
Through an analysis of recent case law, this Note categorizes the types of structural argument
employed by the Court in its statutory-interpretation cases and the various assumptions needed
to motivate such arguments. This fine-grained mapping permits a closer normative evaluation of
structural argument and, in particular, of its compatibility with different methodologies of statutory
interpretation. All dominant methods for reading statutes have good reason—on their own
terms—to employ some types of structural argument, which demonstrates its cross-methodological
appeal. But purposive reasoning best embodies the assumptions of coherence and rational design
that undergird structuralism. The sway of this type of argument over a hypertextualist Supreme
Court thus suggests the enduring need for purposive reasoning, particularly as the
traditional tools of purposivism—such as legislative history—have been largely abandoned