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Law and Macro: What Took So Long?
No full textWhy has the development of law and macroeconomics lagged so far behind law and microeconomics? 1 In this Article, I consider three hypotheses:
1. Microeconomics fits better with law and legal reasoning than macroeconomics.
2. The Great Moderation of 1980-2007, in which western economies mostly avoided the twin perils of high unemployment and high
inflation, lowered the stakes of macroeconomics relative to microeconomics, which encouraged the spread of law and microeconomics. The failure of price controls to thwart the high inflation rates of the 1970s, by contrast, discouraged the development of law and macroeconomics.
3. Law and economics' intellectual origins at the University of Chicago, a place of libertarian leanings and hostility to Keynesian
macroeconomics, encouraged the development of law and microeconomics rather than macroeconomics.
I mostly reject the first hypothesis. Hypotheses two and three, by contrast, prove more compelling
MDL Nationalism, Federalism, and the Opiod Epidemic
No full textMultidistrict litigation (MDL) is a nationalist animal in a federalist system. It is a pragmatic, creative and modern response to the needs of litigation in today's national economy. As such, MDL has become something of a force against the litigation federalism that is at the core of traditional civil procedure. This should come as no surprise. In many ways, that's the point.
Although not the intent of the original drafters of the MDL statute, 28 U.S.C. 1407,2 today, MDLs are formed to centralize into a single
federal court for resolution nationwide suits that often are not amenable to class action. Of course, class actions are often not possible due to a key feature of federalism itself: differences across state law. And almost all "mega" MDLs3 of this nature hold out as their goal "global peace"-a settlement of all pending suits, including suits filed in state courts and so outside of the MDL. In this push for settlement, the gravitational force of large MDLs often pulls state actors and state cases into the federal courts' domain regardless of the formalities of state-by-state jurisdiction and with little attention to state-law variations.
This essay aims to focus new attention on MDL nationalism and federalism. Is MDL's emergence as a nationalist workaround to a fed-eralist litigation system a symptom of broader cracks in the way traditional procedure applies (or fails to adequately apply) to modern problems? And is this particular type of workaround-which has developed organically through generous judicial bending of the MDL statute and the Federal Rules-the way we want the system to evolve? Would a more formal change-such as a new statute, perhaps one that thinks about aspects of federalism we might wish to preserve-be preferable
Charles Reich’s Unfinished Work
No full textCharles Reich never stopped worrying for the world. Throughout his life, Reich diagnosed our social and environmental ills with unmatched prescience, insight, and clarity. Yet Reich also never stopped believing that our better selves could still prevail. Even as the zeitgeist turned decidedly against the “new consciousness” that he once proclaimed to be inevitable, Reich never wavered in his conviction that true freedom must—and can—come from individuals working together.
By letter dated September 12, 2008, Reich shared two book proposals with me that, in his words, “address the same underlying problem in very different ways.” With permission from Reich’s family, the Yale Law Journal agreed to publish these two brief writings as part of this Forum collection celebrating Reich’s life and work.
In one proposal, Reich lays out a vision of what he calls The Individual Sector, a space apart from the public and private sectors within which massive “machines”of governmental and corporate power have come to dominate the terms of human existence. Careful readers of Reich’s landmark article, The New Property, will recognize his distinctive brand of left libertarianism in this proposal, but the call for individual freedom feels more urgent now and informed by intervening decades of political fracture, mounting inequality, market creep, and the rise of existential environmental threats
Punishment in Prison: Constitution the "Normal" and the "Atypical" in Solitary and Other Forms of Confinement
No full textWhat aspects of human liberty does incarceration impinge? A remarkable group of Black and white prisoners, most of whom had little formal education and no resources, raised that question in the 1960s and 1970s. Incarcerated individuals asked judges for relief from corporal punishment; radical food deprivations; strip cells; solitary confinement in dark cells; prohibitions on bringing these claims to courts, on religious observance, and on receiving reading materials; and from transfers to longterm
isolation and to higher security levels.
Judges concluded that some facets of prison that were once ordinary features of incarceration, such as racial segregation, rampant violence, and filth, violated the Constitution. Today, even as implementation is erratic and at times abysmal, correctional departments no longer claim they have unfettered authority to do what they want inside prisons walls. And, even as
the courts have continued to tolerate the punishment of solitary confinement in the last decade, a few lower courts have held unconstitutional the profound sensory deprivations such isolation has entailed.
Prisoners have also sought procedural protections to constrain arbitrary decision-making about placements in solitary confinement and transfers to adverse settings. In response, the Supreme Court has required that, to state a Fourteenth Amendment claim that their liberty had been infringed, prisoners have to demonstrate that a specific practice imposed an "atypical" and
"significant hardship."
What is typical in prisons? What are the sources of knowledge and the baselines used by Justices to decide? How did isolation come to be seen as an ordinary incident of prison life? We answer these questions through analyzing debates in both the U.S. Supreme Court and lower courts about what deprivations in prison are "normal." After excavating the conflicts within the Court about the kinds of liberty interests prisoners retained, we mined hundreds of lower court opinions to learn how judges determine when constrictions on human movement meet the test of atypicality and hardship. By documenting the high tolerance many federal judges have for periods of isolation lasting months, years, and decades, we demonstrate the central role judges play in constructing the "normal" of prisons
The International Law of Intelligence: The World of Spycraft and the Law of Nations
No full textThe International Law of Intelligence: The World of Spycraft and the Law of Nations provides a first-of-its kind exploration of the contemporary legal framework that governs peacetime intelligence operations. This doctoral project attempts to write the missing textbook on espionage to be added to the grand bookshelf of international law. It rejects decades of academic scholarship that has considered spying an extralegal construct, existing at the edge of international legitimacy, and beyond the grasp of mortal rules and regulations. This dissertation diametrically opposes this line of argumentation while maintaining a clear-eyed view of the important functions that intelligence plays in our public world order, further framing these functions within a larger global constitutive process
The Limits of Transgender Incarceration Reform
No full textThis Article explores the incarceration conditions of trans and gender-nonconforming (TGNC) people in Israel. The lived experience of TGNC people reflects the inherent incoherence of sex/gender and of the carceral system, two regimes of violence that derive power from their promise to provide stability and certitude to society. To uncover the practical meaning of these theoretical positions, the Article examines the Israel Prison Service (IPS) at a unique juncture: before and after an attempt to reform its policies regarding TGNC prisoners. An analysis of these reforms against the backdrop of the previous policy illustrates the carceral system's inability to meaningfully transform the treatment of TGNC prisoners
Healing the Healers: Legal Remedies for Physician Burnout
No full textA career as a doctor was long considered to be among the best professional paths that one could pursue. But medicine may no longer be the sought-after career that it once was. All too often, doctors, struggling with the demands of electronic health record systems and a myriad of administrative and regulatory responsibilities, find that they fail to derive much joy from their work and become victims of burnout. Physician burnout is an acute concern in the medical community, with forty-four percent of doctors reporting that they suffer from it. Physician burnout is a public health threat. Doctors who are profoundly distressed cannot provide their patients with the highest quality of care
Broken Experimentation, Sham Evidence-Based Policy
No full textEvidence-based policy is gaining attention, and legislation and agency regulation have been no exception to calls for greater uptake of research evidence. Indeed, current interest in “moneyball for government” is part of a long history of efforts to promote research-based decisions in government, from the U.S. Census to cost-benefit analysis. But although evidence-based policy-making (EBPM) is often both feasible and desirable, there are reasons to be skeptical of the capacity of EBPM in governmental decision-making. EBPM is itself bounded by limits on rationality, the capacity of science, the objectivity of science, and the authority we wish to give technocrats. Where values are highly contentious, efforts to produce and use evidence in legislative and regulatory decisions may go so far awry that they become “sham” versions of evidence-based choices
Investment Misconceived: The Investment-Commerce Distinction in International Investment Law
No full textThe question of what constitutes an "investment" "has turned out to be one of the most highly contested" issues in international investment law. Dozens of articles have been written on the subject.2 Dozens of cases have litigated and decided the question. Still, as one recent award observed, "the meaning of the term is far from... clear.
Origins and Ownership of Remdesivir: Implications for Pricing
No full textOn May 1, 2020, the US Food and Drug Administration (FDA) issued an emergency use authorization (EUA) to allow use of remdesivir — an unapproved drug — for the treatment of hospitalized patients with severe coronavirus disease 2019 (Covid-19). Remdesivir is a viral RNA polymerase inhibitor with antiviral activity against the coronaviruses that cause severe acute respiratory syndrome (SARS) and Middle East respiratory syndrome (MERS). It was identified early in January 2020 as a promising therapeutic candidate for Covid-19 due to its ability to inhibit the in vitro activity of SARS-CoV-2.2. While at the time of the EUA decision there was limited evidence on the safety and efficacy of using remdesivir to treat Covid-19, the drug was later shown to shorten the time to recovery by 4 days in a recent clinical trial sponsored by the National Institute of Allergy and Infectious Diseases (NIAID). It was the first therapeutic shown in a well controlled prospective trial to have any activity against Covid-19.
Although remdesivir has not been shown to improve survival or longterm health, optimism has fueled concern about its accessibility both in the US and around the world. After the EUA was issued, Gilead announced that it would donate 1.5 million doses of remdesivir worldwide, of which 607,000 vials were to be made available in the US, enough to treat an estimated 78,000 hospitalized patients. The federal government was later able to secure 500,000 treatment courses through September 2020. Despite these efforts, it is unclear whether adequate supplies will be available to treat all patients with Covid-19 who require hospitalization each month nationwide.
Concerns have also been raised that not all patients would be able to afford the treatment. Early price estimates have suggested that it could range from 4,500 per treatment course as measured by cost-effectiveness using a 2,520 to 520 per vial, or $3,120 per treatment, for privately insured patients, along with a commitment to make the limited supply of the drug available to US patients first. As clinical trials continue, we review the discovery and ownership of remdesivir, focusing on contributions from the US federal government during the course of its development