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When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation Under Heller
No full textGovernment regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete-and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and the public
sphere on which a constitutional democracy depends.
For centuries the Anglo-American common law has regulated weapons not only to keep members of the polity free from physical harm, but also to enable government to protect their liberties against weapons threats and to preserve public peace and order. We show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Antonin Scalia specifically invokes it as a basis for reasoning about government's authority to regulate the right
Heller recognized.
Today, a growing number of judges and Justices are ready to expand gun rights beyond Heller's paradigmatic scene: a law-abiding citizen in his home defending his family from a criminal invader. But expanding gun rights beyond the home and into the public sphere presents questions concerning valued liberties and activities of other law-abiding citizens. Americans are increasingly wielding guns in public spaces, roused by persons they politically oppose or public decisions with which they disagree. This changing paradigm of gun use has been enabled by changes in the law and practice of public carry. As courts consider whether and how to extend constitutional protection to these changed practices of public carry, it is crucial that they adhere to the portions of Justice Scalia's Heller decision that recognize government's "longstanding" interest in regulating weapons in public places.
We show how government's interest in protecting public safety has evolved with changing forms of constitutional community and of weapons threats. And we show how this more robust understanding of public safety bears on a variety of weapons regulations both inside and outside of courts in constitutional litigation, in enacting legislation, and in ensuring the evenhanded enforcement of gun laws. Recognizing that government regulates guns to prevent social as well as physical harms is a critical first step in building a constitutional democracy where citizens have equal claims to security and to the exercise of liberties, whether or not they are armed and however they may differ by race, sex, or viewpoint
The SPAC Trap: How SPACs Disable Indirect Investor Protection
No full textVolume 40Indirect investor protection makes investing in most public securities safe even without understanding their terms or the underlying business. Special Purpose Acquisition Companies (SPACs) disable this protection by offering two alternative payoffs from the same security, the SPAC share, in the de-SPAC process: the redemption value, or a share in the post-de-SPAC entity. The former is usually higher and chosen by sophisticated repeat players, while unsophisticated investors elect the latter or receive it by default. Before the de-SPAC process, the SPAC share price reflects the higher payoff, such that unsophisticated investors systematically overpay. This overpayment is captured, directly or indirectly, by SPAC sponsors and IPO investors. This allows the latter to make money from SPACs even if SPACs create negative social value
Scrambling the New Sanitationist Synthesis: Civil Liberties and Public Health in the Age of COVID-19.
No full textFor much of the nineteenth and twentieth centuries, the model of public health law was what Professor Wendy Parmet has called the "tragic view" of the law of public health.1 On this account, public health and civil liberties inevitably conflict. Legislators and judges need to make hard choices balancing one against the other. Sacrifices of important values are inevitable.
The leading case of Jacobson v. Massachusetts,2 decided in 1905, serves as the paradigmatic expression of the tragic view. In Jacobson, the Supreme Court upheld by a vote of seven-to-two a Massachusetts mandatory vaccination program for smallpox. Individual rights gave way to collective imperatives under the heading of the police power. Salus populi suprema lex, as the old Ciceronian dictum had it. The health of the people was supreme.
At the end of the twentieth century, public health law made a new turn. In a novel departure, a generation of lawyers and public health advocates began to argue that public health and civil liberties were not in conflict but aligned. Beginning in the 1980s, and inspired by the imperatives of the fight against HIV/AIDS, the new model asserted that nurturing the trust and eliciting the cooperation of vulnerable populations was crucial to the protection of public health and far more effective than harsh mandates and quarantines. Progressive public health leaders asserted that a synthesis of civil liberties and public health would not only protect rights, but that it was also crucial to the successful management of epidemics. 6 Protecting people's rights would enable the protection of public health; restricting those rights would only drive the sick and the vulnerable underground and make epidemic management more difficult. Public health and individual rights, it seemed, might run together because protecting rights would prompt widespread confidence in and cooperation with public health measures
Global Impunity: How Police Laws & Policies in the World's Wealthiest Countries Fail International Human Rights Standards
No full textEvery year, tens of thousands of people die at the hands of law enforcement worldwide.' George Floyd (United States), Daniel Chibuike (Nigeria), Agatha Felix (Brazil), Joao Pedro (Brazil), Breonna Taylor (United States), Anderson Arboleda (Colombia), Laquan McDonald (United States), Eric Garner (United States), Regis Korchinski-Paquet (Canada), Silvia Maldonado (Argentina), Diego
Cagliero (Argentina), Yair L6pez (Mexico), Cddric Chouviat (France), Kumanjayi Walker (Australia)-the ever-growing list of lives lost to law enforcement reveals a dysfunction in the nature of policing that is global in scale. In the last year, demonstrators have gathered in cities-from New York to Tokyo, Lagos to Sydney, Cape Town to Paris-demanding reforms to the way police use
and abuse force against the communities they serve.
In recognition of the global dimension and relevance of this problem and prompted by an appeal from family members of victims of police killings, the U.N. Human Rights Council (HRC) held an Urgent Debate in June 2020 on "racially inspired human rights violations, systemic racism, police brutality and violence against peaceful protests." 4 Testifying before the HRC, U.N. Special Rapporteur on All Forms of Racism, E. Tendayi Achiume, called attention to patterns of "militarization of the police, and the violent crackdown against peaceful protesters and journalists, in the United States," with parallels in many parts of the world, as evidenced by "[t]he massive transnational public outcry" and mobilization. The debate resulted in an HRC resolution deploring the "recent incidents of excessive use of force and other human rights violations by law enforcement officers against peaceful demonstrators defending the rights of Africans and of people of African descent" and calling on countries to "look into their manuals and guidelines used for training law enforcement officers with a view to identifying the proportionality of measures in the handling of suspects and other persons in custody .. "
Prior to the establishment of the international human rights system, the way States engaged in law enforcement in their own territories was understood as an entirely internal matter. The human rights system, however, was instituted to establish global standards on States' treatment of their own citizens, thus ensuring minimum safeguards for every human being regardless of the government they happen to live under. The use of force by State agents against civilian populations is now understood to fall squarely within the constraints set by the human rights system, as expressed in its foundational agreement, the Universal Declaration of Human Rights, and enshrined in the International Covenant on Civil and Political Rights as well as regional human rights treaties." These rights include the right to life, freedom from torture and cruel, inhuman, and degrading treatment, the right to assembly and association, and the freedom from racial discrimination
Why France Spends Less Than the United States on Drugs: A Comparative Study of Drug Pricing and Pricing Regulation
No full textContext: Prescription drug spending per capita in the United States is higher than in most other industrialized countries. Policymakers seeking to lower drug spending often suggest benchmarking prices against other countries, including France, which spends half as much as the United States per capita on prescription drugs. Because differences in drug prices may result from how markets are organized in each nation, we sought to directly compare drug prices and pricing regulations between the United States and France.
Methods: For the six brand-name drugs with the highest gross expenditures in Medicare Part D in 2017, we compared the price dynamics in France and the United States between 2010 and 2018 and analyzed associations between price changes in each country and key regulatory events. We also comprehensively reviewed US and French laws and regulations related to drug pricing.
Findings: Prices for the six drugs studied were higher in the United States than in France. In 2018, if Medicare had paid French prices for the brand-name drugs in our cohort, the agency would have saved $5.1 billion.We identified 12 factors that explain why the United States spends more than France on drugs, including variations in unit prices and the volume of prescriptions, driven by
use of health technology assessment and value-based pricing in France.
Conclusions: Key drivers of lower drug spending in France compared to the United States are that the French government regulates drug prices when products are launched and prohibits substantial price increases after launch. The regulation of prescription drugs in France is governed by rules that can inform discussions of US prescription drug policy and potential Medicare price negotiations
Commandeering Confrontation: A Novel Threat to the Indian Child Welfare Act and Tribal Sovereignty
No full textCongress enacted the Indian Child Welfare Act (“ICWA”) in 1978 to address abuses by state and private child welfare agencies that resulted in the forced removal of roughly one-third of all Indian children from their families. However, four decades after the passage of the law, opponents of ICWA make the novel argument that it impermissibly commandeers the States, in violation of the Tenth Amendment. In Brackeen v. Bernhardt—a 2018 decision that contradicted much of modern anti-commandeering doctrine—the U.S. District Court for the Northern District of Texas became the first court to declare ICWA unconstitutional. The anti-commandeering challenge to ICWA threatens to upend much of federal Indian law and to disrupt the delicate balance of power among states, tribes, and the federal government. This Note refutes the claim that ICWA commandeers the States. The commandeering claims advanced against ICWA contradict settled Supreme Court doctrine and misconstrue the practical application of the statute. Under a proper reading of modern anti-commandeering jurisprudence and an informed understanding of how state child custody proceedings work, it is clear that ICWA falls well within the bounds of the Tenth Amendment
Legal Internalism in Modern Histories of Copyright
No full textLegal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation about copyright, it also overlooks the centrality of legal internalism in the evolution of copyright, a domain that has always been understood as a creation of the law. The Review unpacks the core tenets of legal internalism, examines how it operates as an important variable of legal change, contrasts it with the idea of legal consciousness, and shows how legal internalism directs and regulates the entry of nonlegal considerations into different areas of law
Defending Progressive Prosecution
No full text“Progressive prosecutors” are taking over District Attorney’s Offices across the nation with a mandate to reform the criminal justice system from the inside. Emily Bazelon’s new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal justice. This Essay highlights the importance of Charged to modern criminal justice debates and leverages its concrete framing to offer a generally applicable theory of prosecutor-driven criminal justice reform. The theory seeks to reconcile reformers’ newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous accumulation of prosecutorial power. It also offers the potential to broaden the reform movement’s appeal beyond progressive jurisdictions