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Just-Right Government: Interstate Compacts and Multistate Governance in an Era of Political Polarization, Policy Paralysis, and Bad-Faith Partisanship
Get PDFThose committed to addressing the political, economic, and moral crises of the day— voting rights, racial justice, reproductive autonomy, gaping inequality, LGBTQ rights, and public health and safety—don’t know where to turn. Federal legislative and regulatory pathways are choked off by senators quick to filibuster and by judges eager to strike down agency rules and orders. State pathways, in turn, are compromised by limited capacity, collective action problems, externalities, scant economies of scale, and—in many jurisdictions—a toxic political culture hostile to even the most anodyne government interventions. Recognizing the limited options available on a binary (that is, federal or state) governance roadmap, this Article prescribes charting a third pathway: interstate agreements and compacts. Such arrangements—largely unnecessary when Washington is not pathologically dysfunctional—have a long and venerable constitutional pedigree and provide a legally sound and politically expedient “just-right” solution. Grouping clusters of states along the Pacific Ocean, the Amtrak Corridor, and the Upper Midwest, we propose and briefly sketch four major compacts as cornerstones of a Blue New Deal. Beyond detailing the four strategic interventions designed principally to work around the instant federal and state roadblocks (and recognizing similar opportunities for purple and, possibly, red states, too), this Article makes the affirmative, normative case for interstate agreements and compacts playing a long term, regular, and prominent role in twenty-first-century American governance—a case that sounds in democratic theory, administrative law, and political economy
Socioeconomic Rights, Competition, and Systemic Neutrality: Approaching the Right(s) Contribution to Emancipatory Social Movements
No full textDebate over the emancipatory potential of socioeconomic rights and their relevance to broader social movements is long-standing but is now picking up steam and taking on a life well beyond its traditionally legal disciplinary confines. This article contributes to the widening debate by emphasising the need for socioeconomic rights to be re-thought simultaneously outward (through deeper engagement with extant economic and political systems) and inward (by re-assessing various doctrines ingrained in their own construction). I pursue this ‘two-track’ methodology by first constructing a novel theory regarding the outward engagement of socioeconomic rights with competition law and policy, focusing on the collective agency of rightsholders pressing for social change through democratic means and the specifically neoliberal conception of competition. Crucially, following William Davies (The Limits of Neoliberalism), I argue that this specific conception of competition is not just another aspect of neoliberalism but is instead the defining characteristic of the neoliberal system. The finding of incompatibility between socioeconomic rights and this conception of competition therefore implies incompatibility also with the neoliberal system, tout court. However, this systemic rejection provokes inward analysis of the surprisingly under-examined legal doctrine of systemic neutrality, positing that socioeconomic rights can be meaningfully realised in any political or economic system. Ultimately, it is argued that to have any real emancipatory relevance to broader social movements socioeconomic rights advocates, in general, must be far more forthright and logically consistent in what these rights both entail and exclude. The emancipatory promise of these rights is inherently bound to a rejection of their neutrality, legal, systemic, or otherwise, and an active, cooperative theoretical, and political engagement with more broadly emancipatory movements in a range of non-legal fields
Rethinking the Civil Protection of Patients from Misleading Pharmaceutical Marketing Under Saudi Law
Get PDFThe effect of pharmaceutical marketing on individuals is a universal concern. It can influence patients\u27 health and wealth. Patients, as well as their prescribing medical doctors, have been targeted by such marketing through different means. Many patients are unaware of their position as the most vulnerable party in this context and how these promotional strategies affect their physicians\u27 decisions. When pharmaceutical marketing includes false, misleading, or otherwise negligent statements, patients become potential victims. This research addresses patients\u27 civil protection from misleading pharmaceutical marketing under Saudi law. The study addresses four crucial aspects of patient protection: (i) ex-ante government regulations, (ii) civil liability, (iii) compensatory damages, and (iv) access to justice. The study will also explore and identify major challenges confronting the current legal efforts and suggest solutions to contribute to developing patients’ protection from misleading drug marketing in Saudi Arabia
On Fires, Floods, and Federalism
Get PDFIn the United States, law condemns poor people to their fates in states. Where Americans live continues to dictate whether they can access cash, food, and medical assistance. What’s more, immigrants, territorial residents, and tribal members encounter deteriorated corners of the American welfare state. Nonetheless, despite repeated retrenchment efforts, this patchwork of programs has proven remarkably resilient. Yet, the ability of the United States to meet its people’s most basic needs now faces an unprecedented challenge: climate change. As extreme weather events like wildfires and hurricanes become more frequent and more intense, these climate-fueled disasters will displace and impoverish more people. How can the United States adapt its welfare programs to assist Americans in the face of this threat?
This Article maps that uncharted territory. It contextualizes the climate crisis in our scholarly understanding of the U.S. welfare state. It then canvasses the myriad disaster provisions in each major welfare program. Equipped with an understanding of the status quo, the Article proceeds to evaluate how federal law has fared amid the recent spate of fires and floods. The Article attends to the role of Congress, weakened as it is by increased polarization and diminished capacity, and how the resulting delays and distortions in emergency relief have hampered the governmental response. The Article then brings state government into focus, and in doing so, demonstrates how assistance often excludes the most vulnerable Americans. The Article also extracts lessons from the pandemic response and applies them to climate adaptation of public benefits. The Article concludes with an agenda for how to adapt welfare programs to meet the climate crisis. That agenda starts and ends with the federal government, but it includes policies states, territories, and Tribes could implement if Congress and federal agencies do nothing or not enough. The Article repurposes what we know about how the U.S. welfare state functions now to inform what government should do next
Outcome Sensitivity and the Constitutional Law of Criminal Procedure
Get PDFIconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. In this Article, I surface the parallel functions that these rules perform, explain why they should be banished from substantive constitutional law, and advance my preferred view of their legal status: as subconstitutional limits on judicial remedies. At stake are basic behavioral incentives for defense lawyers, police, prosecutors, and judges.
I proceed in three parts. In Part I, I map the universe of sensitivity rules. They can be internal pieces of substantive constitutional law (like materiality and prejudice elements), or they can be external limits on remedies for completed constitutional wrongs (like harmless error rules). They can also define downstream constitutional errors distinct from upstream constitutional violations (like certain rules against in-court identification). In Part II, I reject internal sensitivity rules, which unwisely transmit mixed signals to criminal justice actors engaged in disfavored conduct. Such rules undermine crucial professional norms, and they degrade constitutional enforcement that takes place outside the criminal process. In Part III, I argue that external sensitivity rules should be conceptualized as subconstitutonal limits on judicial remedies. That status neatly explains why sensitivity rules apply in state court, it avoids standard criticism of federal common law, and it is less doctrinally disruptive than the external alternatives
The Policy Origins of Wi-Fi
Get PDFWi-Fi technology has become a necessary foundation of modern economic and cultural life. This Article explains its history. Specifically, it argues that Wi-Fi owes its existence and widespread adoption to federal policy choices that have been underexplored in the literature. Wi-Fi’s development is often portrayed as an unexpected and lucky accident following the FCC’s initial decision in the 1980s to allow more unlicensed and experimental uses. This view, however, obscures the more fundamental role that federal policy played. For one, the rise of modern Wi-Fi was the product of a series of policy decisions spanning decades. In addition, the FCC’s policy design itself is also an underappreciated part of Wi-Fi’s story. These policies were (eventually) crafted in ways that maximized innovation and leveraged the generative power of the unlicensed spectrum “commons.” Specifically, the policy designs featured technical rules that lowered entry costs by being administratively simple and generic and by rejecting specific technological requirements despite incumbent pressure. Understanding this history has implications for modern spectrum policy debates as well. In particular, it helps illustrate why Wi-Fi succeeded while other efforts to encourage unlicensed technologies have failed. It also provides normative justification for the FCC’s most recent efforts to significantly increase unlicensed spectrum
Pregnant Workers Fairness Acts: Advancing a Progressive Policy in Both Red and Blue America
Get PDFPregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to stay on the job safely through a pregnancy. In the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divide in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay offers the first detailed case study of this remarkably effective campaign, and it shows how it laid the groundwork for analogous federal legislation, passed in December 2022, that ensures workers across the country will have the support they need to maintain healthy pregnancies.
Advocates have generated bipartisan support by highlighting that the laws, generally known as Pregnant Workers Fairness Acts, simultaneously advance numerous distinct policy objectives. Lack of accommodations for pregnancy is a major barrier to women’s equality that disproportionately disadvantages poor and working-class women of color. Addressing this need is also a pro-family policy that promotes maternal and infant health and reduces liability risk to employers. These various frames help sell the policy to lawmakers across the political spectrum.
The state-level success has also been the result of effective partnerships between national organizations and state and local groups. Additionally, the Essay shows how the state legislative campaign has been reinforced by litigation in federal courts, advocacy to federal agencies and Congress, and worker organizing. Finally, the Essay explores how state-level organizing—even unsuccessful state campaigns—played an important role in bolstering support for the federal Pregnant Workers Fairness Act
What is an English Jew?: The Legal Construction of Jewish Identity Under the UK Equality Act of 2010
Get PDFJustification of the Reasonable but Mistaken Self-Defense: a Doctrinal Analysis
No full textSince 2018, China has implemented judicial reforms to expand the judicial application of the self-defense clause. The core of this judicial reform is to treat reasonable but mistaken self-defense as real self-defense by altering the method for determining elements of self-defense. The expansion of self-defense applications is rooted in policy considerations, but its logic in criminal law doctrine requires further scrutiny. On this matter, Anglo-American criminal law has accumulated abundant theories and case materials, but its criminal analysis system differs from China\u27s. In contrast, Continental criminal law has not studied this subject deeply, but it offers a doctrinal framework for distinguishing between justification (wrongfulness) and excuse (culpability). To address China\u27s issue (to justify), drawing on the Anglo-American precedents as thinking materials (which can be justified) and the Continental structured legal discourse as the thinking framework (how to justify), the proposition of the justification of reasonable but mistaken self-defense can be demonstrated, leading to the harmonization of criminal law doctrine and policy considerations. In the determination of self-defense elements, there are three closely related aspects: the timing of judgment, the object of judgment, and the standards of judgment. Regarding the judgment timing, a shift from ex-ante to ex-post judgment is advocated. This transition finds its doctrinal basis in utilitarianism within Anglo-American criminal law and objectivism within Continental criminal law. A key challenge lies in resolving the dilemma of the innocent victim. Regarding the judgment object, a shift from objective to subjective judgment is advocated. The rationale for this transition is the nature of self-defense. The purpose of self-defense is not punitive but defensive—safeguarding the defender. Thus, the object of the crime analysis system should be the defendant (the defender), not the victim (the aggressor). Overcoming the hurdle of subjective judgment involves effectively addressing the risk of an overly subjective interpretation of criminal law. A key challenge lies in addressing the risk of an overly subjective interpretation of criminal law. Regarding the judgment standard, it is advocated to refine specific elements in the “reasonable person” standard within the context of distinguishing between justification and excuse. This approach prevents unjustified expansions or restrictions in establishing self-defense boundaries and reduces the possibility of inconsistent rulings in similar cases