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The Political Economy of the Opioid Epidemic
No full textPublic health problems have a political economy rooted largely in public and private laws that both reflect the distribution of power in society and shape its policy responses. In this Article, we apply this perspective to the U.S. opioid crisis, which was triggered by a quadrupling of opioid prescribing beginning in the mid-1990s. Such staggering increases in opioid use are impossible to understand without unpacking the incentives and institutional pressures associated with the distribution and use of addictive legal drugs, particularly how those pressures can dilute the substantive goals and efficacy of regulatory governance
T.H. Marshall, the Moral Economy, and Social Rights
No full textAt a crucial juncture in his famous lectures on “Citizenship and Social Class,” English sociologist T. H. Marshall explained that the new social rights he associated with the invention of the twentieth-century welfare state were in fact a blast from the past—a
bequest from the moral economy to a later age grappling with political economy run amok. For this reason, Marshall’s celebrated theory of social rights provides one aperture through which to intervene in a dispute brewing between starkly alternative views of the moral economy tradition he invoked.
“The original source of social rights was membership of local communities,” Marshall related. The Elizabethan Poor Law backed up this ramshackle local approach. Just before the triumph of capitalism, the late-eighteenth-century Speenhamland modifications to the Poor Law system provided “a guaranteed minimum wage and family allowances, combined with the right to work or maintenance,” as Marshall recalled from Karl Polanyi’s presentation of 1790s innovations in The Origin of Our Time (as the English version of The Great Transformation was known). Marshall enthused that this provision was “a substantial body of social rights, even by modern standards.” Polanyi had not used the language of social rights, but otherwise Marshall directly incorporated his storied account of the endurance and transformation of the moral economy directly into his own.
That incorporated narrative proceeded through the displacement and return of the moral economy. The Elizabethan Poor Law helped delocalize the very social protection it intended to buttress, and inadvertently paved the ways for ideologies of transactional freedom to conquer old moral cultures of interdependence. To the extent that the moral economy remained live into the nineteenth century, “citizenship was divided against itself,” Marshall explained. To resolve the conflict, premodern social rights were liquidated in the name of the civil ones of modern liberalism. A premodern moral economy that had once fostered duty to others and a sensitivity to basic needs fell to modern political economy, with individual liberties of transaction safeguarded from the annoyance of countervailing norms of solidarity. Some “mercy” remained in the new Poor Law (1834), Marshall acknowledged, but it was of bare significance and no longer defined the entitlements of citizenship
Value Tracing and Priority in Cross-Border Group Bankruptcies: Solving the Nortel Problem from the Bottom Up
No full textThe Nortel bankruptcy case is simultaneously the biggest success and biggest failure in the recent history of cross-border restructuring practice. On the plus side, the coordinated sale of an insolvent telecom firm's key assets created a pool of value worth 2.6 billion.
The fights centered on alleged entitlements to priority-upward deviations from equal treatment and pro rata distribution. These fights were complicated by Nortel's structure as a global corporate group. The claims were based on, among other things: (1) liens; (2) corporate structure; (3) territorial jurisdiction; and (4) local statutory priorities. Interactions among these claims to priority made it virtually impossible to unscramble the egg.
The court's answer to the problem, dividing the pool of value amongst all proceedings pending for the Nortel group, has been characterized as a partial substantive consolidation and has proven controversial. In our view, the court's solution- pari passu distribution by estate-reached the right substantive result but got there by the wrong route. By calling the approach "partial substantive consolidation," the court framed its order as relying on "substantive consolidation," an extraordinary remedy that
disrespects the corporate form and is available only when the court finds bad behavior or disrespect of corporate formalities.
Regulating Intermediate Technologies
No full textOver the last several years, scholars studying health innovation policy have carefully considered the ways in which policymakers regulate different types of technologies to encourage their development and dissemination. Scholars have examined a range of legal incentives, including patents, Food and Drug Administration (FDA) exclusivity periods, taxes, grants, insurance reimbursement, and other tools to promote socially valuable innovations that our current system has structurally disfavored
Inventing the War Crime: An Internal Theory
No full textThis Article offers a novel account of how and why the war crime arose as a legal concept in the late nineteenth and twentieth centuries. The reason was not new horrors and atrocities, though to be sure there were all too many of those. Nor was the war crime born of any special moral insight, Instead, new procedural and jurisdictional imperatives internal to the constitutional Iaw of the United States-the most bellicose State in the Euro-American world during the mid-nineteenth century --presented the occasion or the war crime idea. Jurists and soldiers elaborated the war crime as a category separate and distinct from ordinary crime in order to manage the special constraints placed by the United States Constitution on criminal prosecutions. While navigating such constitutional obstacles to the punishment of Mexican guerrillas and Confederate soldiers, American jurists coined the phrase 'var crime" and cemented the modern concept to which it is attached
Applying International Human Rights Law for Use by Facebook
No full textn recent years, social media platforms have been beset with hate speech, misinformation, disinformation, incitement of violence, and other content that cause real-world harm. Social media companies, focusing solely on profit-maximization and user-engagement, have been largely asleep at the wheel during outbreaks of violence in countries such as Myanmar, Sri Lanka, New Zealand, and India–events all linked in some way to online content. When social media companies began trying to reduce harmful content, they made tweaks: incremental, non-transparent, and often inconsistent changes to their moderation rules. To build a more effective and consistent system, some international lawyers have suggested that social media companies adopt international human rights law (IHRL)–especially the International Covenant for Civil and Political Rights (ICCPR)–as a unified source for content moderation rules. How-ever, IHRL was written and ratified for use by states, not private companies. Moreover, IHRL emerged long before the Internet and social media were widespread. IHRL must therefore be interpreted and adapted for this new purpose. As a first step towards honing and refining its application, this article proposes a framework for the use of IHRL by social media companies
The Global Rise of Judicial Review Since 1945
No full textProfessor Bruce Ackerman's new book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law,1 Volume I, is a monumental contribution to the nascent field of Comparative Constitutional Law. It is the best and only theoretical treatment of the subject it covers, and the book contains an enormous amount of new research and writings in English of the countries it covers which include: India, South Africa, Italy, France, Poland, Israel, Myanmar, and Iran. It is an invaluable contribution to the field and an
exemplary work of scholarship.
Professor Ackerman's book explains how twentieth century revolutions in the countries he studies led to the constitutionalization of charisma-borrowing the terminology of Max Weber. Ackerman explains that revolutionary leaders in the countries he discusses in Volume I chose to write constitutions, thus making permanent the charismatic power that they had at Time 1 as revolutionaries. He then notes that actors much later on at Time 2 in those countries were bound and controlled by the written constitutions that
revolutionary leaders had entrenched at Time 1.
Professor Ackerman argues that there are three separate paths that modern constitutions have followed since 1945. The first path, which is the sole path discussed in Volume I, is the mobilization of a mass movement party by a charismatic leader who leads a charismatic mass movement to overthrow the prior undemocratic and repressive regime and to institute a new regime whereby the charismatic leader constitutionalizes and makes enduring his and his movement's charisma. The second path, which will be discussed in Volume II, occurs when powerful elites construct a constitution at Time 1, as happened in Japan and West Germany after World War II, and that elite-written constitution then becomes an enduring document, which people follow and which has legitimacy at Time 2. The third path, which will be discussed in Volume III, occurs when a constitution evolves over a long period of time at Time 1, which has happened in the United Kingdom, in Canada, and in Australia. These constitutions are followed and enjoy legitimacy at Time 2 in those respective countries
Rethinking Complicity in the Surveillance of Sex Workers: Policing and Prostitution in America's Model City
No full textThis Note uncovers a history that has been largely ignored, dismissed, and sometimes even intentionally obscured: the history of the policing of sex workers in the twentieth century..When most lawyers think about the surveillance of sex workers, they think of a standard cast of characters: police, prosecutors, pimps, purchasers, and procurers. But the surveillance of sex workers has always been much broader and renders a far greater number of actors complicit. This Note uncovers the significant (yet often overlooked) roles played by four groups in surveilling sex workers: (1) the federal government, (2) elite women, (3) public health authorities, and (4) major universities. As a case study, the Note focuses on the city of New Haven, Connecticut, during the twentieth century
BETWEEN MARTIN LUTHER AND MARTIN LUTHER KING: James Pennington’s Struggle for “Sacred Human Rights” Against Slavery
No full textThis Article outlines the human rights theories of nineteenth-century abolitionist and civil rights leader James Pennington. Born into slavery in Maryland, Pennington escaped North and became the first African American to attend Yale. As an ordained Presbyterian clergyman, educator, orator, author, and activist, he adapted traditional Protestant rights theories explicitly to include the rights of all, regardless of race. He emphasized the authority and freedom of the individual conscience as foundational to human rights. He advocated a central role for covenantal institutions including church, state, family, and school as essential for fostering a law and culture of human rights. And he defended the right of all to disobey unjust laws and resist tyrannical regimes. Pennington bridged these theories in novel ways with pacifist teachings, anticipating by more than a century the American civil rights movement led by Martin Luther King, Jr., and others. Though largely forgotten by historians, Pennington was well known and influential among his contemporaries. His life and work represent an important step in the development of law, religion, and human rights
Punishing Non-Citizens.
No full textThis paper considers the question of why the non-citizenship of offenders poses an obstacle to their criminal punishment. Several proposals are rejected, including Antony Duff’s proposal. It is proposed, instead, that governments are not authorized to punish any offender who cannot be attributed with the norm he violates. The government cannot attribute the norm that a non-citizen violates to him, if the noncitizen can raise in his favor the fact that he has no say over the law. Under certain circumstances, such as when they are visiting, non-citizens cannot raise this point, and so can be attributed with the norms they violate