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Valuing Life: A Human Rights Perspective on the Calculus of Regulation
Get PDFHow much is a human life worth? This is both a puzzling and subversive question for human rights advocates to consider. The concept of human rights is premised on the sanctity and inviolability of human life as well as the equality of all human beings. Indeed, the right to life and the corollary right to be free from the arbitrary deprivation of life constitute the defining human right. To place a price on the value of human life is, thus, unsettling. And yet, monetary valuation of human life occurs frequently. Governments use cost-benefit analysis and calculations regarding the value of a statistical life (VSL) to make countless decisions on a variety of issues that implicate human life and affect mortality, including environmental standards, health regulations, transportation rules, and worker safety protocols.
This article examines the valuing of life from a human rights perspective. It suggests that some decisions based on cost-benefit analysis and that use VSL calculations may violate the right to life norm because they fail to provide sufficient protection to human life. In fact, efforts to monetize human life and other human rights may face insurmountable challenges because such rights are not easily amenable to quantification or monetization.
Regulatory decisions implicate human life around the world on a daily basis. Mortality risks are real, and people live and die based on the regulatory decisions that governments make. While this article addresses the use of cost-benefit analysis and VSL calculations in the United States, its conclusions apply to all governments that use this methodology in their decision-making process
Decoding the Impossibility Defense
Get PDFImpossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation.
Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters
Comparison: Improving How the Legacies of State-Sponsored Segregation in The United States and South Africa Affect Equity and Inclusion in American and South African Higher Education Systems
Get PDFSorting Out White-Collar Crime
No full textOur federal criminal code defines crimes, but declines to sort its fraud offenses according to degrees of harm or culpability. Although state prosecutors routinely charge crimes such as homicide or robbery in varying degrees, the federal code’s core fraud statutes are noticeably flat. There is no such thing as first- or second-degree fraud in the federal code.Amidst a roiling debate as to whether the federal government overcriminalizes or underenforces white-collar crime, scholars have lost sight of the federal code’s lack of gradation. This Article seeks to remedy this neglect, particularly in regard to fraud crimes. Drawing examples from federal and state criminal codes, the Article analyzes the ways in which ungraded statutory regimes generate problematic and self-destructive expressive gaps. By lumping so much conduct under a single statutory umbrella, the federal code deprives the public of the ability to gauge the seriousness of a specific offense and of the will to discern those factors that separate the worst frauds from the merely bad ones.If criminal law’s function is to distinguish wrongdoing and not solely to prohibit it, then our federal fraud statutes leave much to be desired. Reasonable people can debate the proper methodology for distinguishing bad from worse offenses, but it is quite another matter to abandon statutory sorting altogether. Accordingly, the Article closes by advocating the use of misdemeanor and low-level felony statutes to improve—and sort—the federal code’s fraud crimes
Rolling Back the “Pink Tax”: Dim Prospects for Eliminating Gender-Based Price Discrimination in the Sale of Consumer Goods and Services
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The Good, the Bad, and the Evils of the #MeToo Movement’s Sexual Harassment Allegations in Today’s Society: A Cautionary Tale Regarding the Cost of These Claims to the Victims, the Accused, and Beyond
Get PDFWeighing Democracy and Judicial Legitimacy in Judicial Selection
Get PDFFor over two centuries Americans have debated whether judges should be elected or appointed. While the explicitly-framed tension has been about the relative importance of judicial independence and judicial accountability in a democracy, the underlying issue has been about which structure better promotes the legitimacy of the judiciary. An institution has legitimacy when it enjoys diffuse support even for controversial decisions. Judicial legitimacy is in inherent tension with a judiciary in a democracy, since democracy implicitly assumes political elements to selection of all leaders (including judges), while judicial legitimacy is undermined by politics. The contemporary work on the relationship between judicial selection methods and legitimacy does not support a clear preference for judicial election versus judicial appointment. This Article proposes that in order to promote judicial legitimacy in a democracy, consideration should be given to a civil service-like, nonpartisan, objective merit screening of judicial aspirants-whether the aspirant ultimately is selected through election or appointment