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Thirsty Places
Get PDFThe United States, among the wealthiest and most prosperous nations in the world, regularly fails to provide clean, potable water to many of its citizens. Recent water crises occur within communities categorized as Geographically Disadvantaged Spaces (“GDS”), which often encompass urban and rural areas. What is more, people of color and economically vulnerable populations are often located within GDS, disproportionately burdening these groups with the economic and public health consequences of failing water infrastructure. This Article provides a novel, comparative analysis of communities lacking potable water in Flint, Michigan, and southern West Virginia. This analysis highlights entrenched structural problems present in rural and urban contexts, as implicating compound socioeconomic and race-related inequalities that transcend such seeming geographic divides. Lastly, this Article advocates for infrastructure development policies that address the underlying structural issues plaguing GDS—both rural and urban—and examines whether the Green New Deal could serve as an effective solution
Understanding the Ethics of Natural Experiments in a Pandemic
Get PDFPandemics invite natural experiments: testing hypotheses through observing the effects of interventions without manipulating exposure to the intervention. With novel infections like COVID-19 that spread rapidly and widely, knowledge gaps may be extensive. Quick action may be necessary and randomized trials impracticable if not downright impossible. But what can justify such interventions ethically, given that they are in some sense widescale experiments upon unaware members of the public who have no opportunity to choose not to participate? And what ethical limits to them should there be
Social Enterprise Law: A Theoretical And Comparative Perspective
Get PDFThis article analyzes social enterprise from a theoretical and comparative perspective. Social enterprises are distinct from nonprofits because they have equity-holders; they are distinct from socially minded for-profits because their mission is sacrosanct. We set out a regulatory template to support entities with this unique hybrid character. Only companies that commit to a mission-centric purpose, and adopt transparency and accountability mechanisms that police faithfulness to this commitment, would be entitled to call themselves “social enterprises.” This narrowly tailored regulatory structure would allow these firms to stand out and attract likeminded consumers and investors. Neither the US nor the EU offers something like this. Social enterprises in the US may form as benefit corporations and obtain the related B Corp certification. These mechanisms, while laudable, fall short because they group socially minded firms and social enterprises together despite the important distinction between the two. Such conflation is not a problem in the EU. A number of EU countries have specific social-enterprise regulations. But the rules vary greatly. They also tend to define social enterprise too narrowly, fail to mandate appropriate governance structures, and lack transparency mandates. A proposed EU-wide rule would help harmonize the area, but it is too reliant on country-level rules to have a significant impact. Social enterprises on both continents would benefit from new rules that appreciate their unique role in the economy and hold them to their principles
Injunctions in Patent Law: A Trans-Atlantic Dialog on Flexibility and Tailoring
Get PDFThis chapter is from the edited volume Injunctions in Patent Law: A Trans-Atlantic Dialogue on Flexibility and Tailoring (Jorge Contreras & Martin Husovec, eds., Cambridge Univ. Press, forthcoming). It offers a unique analytical synthesis of eleven national and two regional/international descriptions of flexibilities in patent remedies authored by leading scholars in the field. This synthesis identifies a range of similarities and differences among jurisdictions, explains the principal features of these different legal systems, provides an analytical framework for comparing them, and offers observations about trends and the outlook for the future. The countries studied include Canada, Finland, France, Germany, Israel, Italy, Netherlands, Poland, the United Kingdom, and the United States, with additional commentary on the European Union and the World Trade Organization TRIPS Agreement
One Child Town: The Health Care Exceptionalism Case Against Agglomeration Economies
Get PDFThis Article offers an extended rebuttal to the suggestion to move residents away from dying communities to places with greater economic promise. Rural America, arguably, is one of those dying places. A host of strategies aim to shore up those communities and make them more economically viable. But one might ask, “Why bother?” In a similar vein, David Schleicher’s provocative 2017 Yale Law Journal article, Stuck! The Law and Economics of Residential Stagnation, recommended dismantling a host of state and local government laws that operate as barriers to migration by Americans from failing economies to robust agglomeration economies. But Schleicher said little about the fate of the places left behind. Schleicher’s article drew a number of pointed responses, urging the value and preservation of Small Town America. But those arguments failed fully to meet the rational economic thesis, countering instead with more sentimental or humanitarian concerns. This Article offers a way to reconcile the two views, refracted through a health care lens. Health care is a particularly apt perspective for considering the question of whether America’s rural places are worth saving because it necessarily, under longstanding U.S. policy preferences, walks the line between economic principles and human rights; individual responsibility and communitarian values; the rational actor and the deserving recipient of aid. The health care exceptionalism case against agglomeration economies urges consideration of the real, quantifiable costs of migration and, correlatively, the value of home, as well as the market imperfections inherent in health care and, even more so, in rural health care
State Complicity and Religious Extremism: Failing the Vulnerable Individual
Get PDFReligious extremism—especially when unhindered by the state—can result in unimaginable harm to individuals. That is not to suggest that the only extremism is religious extremism.That would be patently incorrect and a profound misrepresentation of history; secular extremism - Communism, Fascism, Nazism, Pol Pot, Mao to name but the most obvious - has exacted an unimaginable price on hundreds of millions of people over the ages. While our examination will focus exclusively on religious extremism that is not intended - in any way - to minimize the extraordinary harm inflicted on innocent individuals by extremism not based on religion. To suggest otherwise would be an unacceptable combination of revisionist history, disrespectful of the memories of millions of victims. As we move forward, it is important to recall that in this chapter our focus is religious extremism and its impact on the individual. In doing so, we analyze the cost to the individual impacted by extremism and argue that state complicity in the face of extremism exacerbates individual vulnerability.In focusing on individual vulnerability, the working assumption is that the state fails to protect the individual member of a closed religious extremist group. The obligation, and the consistent failure, to protect individuals in the face of religious extremism - particularly in the context of “closed communities” - has significant consequences. This chapter will focus specifically on the effect specific closed communities have on vulnerable individuals. Not only does it put individuals “at risk”, it manifests state complicity in the face of extremism, the consequences of which are profound. While religious extremism is harmful to greater society, it is especially harmful to vulnerable individuals. With respect to the impact on larger society, specific examples will be provided illuminating the consequences of state complicity, regardless of its motivation or cause
On (Not) Deserving Disadvantage
Get PDFThe Americans with Disabilities Act (ADA) is a civil rights statute, giving rights to everyone, but is structured to require people claiming its protections to have a characteristic, “disability.” This structure presents an apparent paradox: how can a statute accord both civil rights to all and special rights to some? This contribution argues that the paradox can be dissolved by understanding discrimination “based on” disability as treating people unfairly because of a characteristic they have, in two critically different forms. One form is individual: the failure to accommodate mental or physical differences to enable individuals to work successfully, participate in public services, or experience public accommodations as others do. Another form is general: the failure to adjust the world of built structures or created policies that exclude people with disabilities. Recognizing this difference between exclusions rooted in the failure to accommodate and exclusions rooted in the failure to modify is critical to the disability anti-discrimination project. So is the recognition that there are other forms of unjust exclusion that disability anti-discrimination law does not address
Toleration of Free Speech: Imposing Limits on Elected Officials
Get PDFTolerance is a nuanced issue, inevitably raising concerns regarding tolerant of what and whom. There is a sense of subjective judgment in the tolerance-intolerance debate; the terminology reflects particular norms, mores, customs, and traditions. What one might perceive as a healthy and tolerable challenging of existing acceptable “ways,” another would not tolerate because of the very challenge it poses to society. That split between tolerance-intolerance applies to both speech and conduct. It reflects everyday tensions, challenges, and conflict. In examining the tolerance-intolerance debate in the speech context there are a number of assumptions integral to a robust, liberal democracy: the freedom of speech is given a wide swath, whereby courts broadly protect the freedom of speech guaranteed in constitutions and legislation. While the speech may make certain sectors of the population uncomfortable, may be perceived as offensive, courts are tolerant of such speech provided it does not morph-transition into the realm of incitement. National leaders have significant power when they speak. The scope of this chapter is limited to analyzing the extent to which national leaders’ speech should be tolerated. Donald Trump and Bibi Netanyahu both provide salient examples regarding the extent to which speech should be tolerated. Both Netanyahu and Trump have used social media to great effect. The way that social media facilitates the spread of misinformation plays must be taken into account when analyzing the importance of contemporary leaders’ speech. In addition, the level to which qualified immunity and the freedom of speech should apply to elected officials comes under question. This chapter analyzes the extent to which qualified immunity should apply and the level of tolerance that the speech of leaders should be afforded
Inside the Black Box of Prosecutor Discretion
Get PDFIn their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what sorts of limits, supervision, or guidelines prosecutors work within. And we do not know what sorts of information prosecutors rely upon, when making their decisions. Prosecutors’ decisions have accordingly been called a “black box” for their inscrutability.
Until now. We recruited over 500 prosecutors nationwide, and had them charge an identical case given identical substantive law, specify the plea bargain terms that they would seek, and explain their decisions. We also learned about their internal office guidelines and procedures, and the information they rely upon when making charging and bargaining decisions.
Our study tells a story of surprising severity in how prosecutors dispose of a relatively mild case with no harm to victims, creating potentially devastating consequences for an offender suffering from apparent mental illness. Taking advantage of our vignette-survey design, which presents the exact same case to hundreds of prosecutors, we also document wild heterogeneity in prosecutor charging practices, with some dismissing the case out of hand and others demanding months or years of incarceration. We also find that many prosecutors lack meaningful guidelines or supervision. Nonetheless, in our review of their qualitative explanations, we also find prosecutors aspiring to do justice, concerned about harm to victims and the rehabilitation of offenders, and considering their mental health and financial wherewithal. From these findings, we shed light in an otherwise theoretically rich but empirically lacking area of criminal scholarship
Law Talk in a Brief Advice Clinic
Get PDFOver three decades ago, Sarat and Felstiner published a ground-breaking ethnographic study of divorce client-lawyer conversations. They concluded that lawyers portrayed a chaotic \u27anti-system\u27 in which [clients] cannot rely on the technical proficiency, or good faith, of judges and rival lawyers but need to rely on their own lawyers\u27 insider status to achieve reasonable outcomes.1 Although lawyers initially described the law and procedure to their clients, they rarely referenced that rational description when explaining what had occurred or would occur in their clients\u27 cases. This law talk may have gradually and ultimately persuaded the clients to reach reasonable settlements, but it did so at the cost of client distrust of and cynicism about the legal system.Today most divorcing parties do not have attorneys providing full representation for them. Instead, clients represent themselves, often relying on brief advice from attorneys. This raises a question: How do attorneys today portray the legal system to clients attempting to navigate it themselves? Does their law talk fail to link law and procedure to what happens in the clients\u27 cases, engendering cynicism? Are they similarly critical about judges, other attorneys, and the legal process? Do they suggest the clients need to have an insider attorney on whom to rely?This study answers these questions by analyzing thirty-six attorney-client conferences and thirty-nine attorney-student consultations from a brief-advice clinic. These pro bono attorneys present – to both their clients and the law student volunteers – a rational legal system with understandable procedures and fair jurists. They provide candid advice even when the client is unlikely to achieve a particular goal, neutral information about how to make any argument, and encouragement. They never intimate that pro se parties need an insider attorney who knows the idiosyncrasies and proclivities of incompetent judges and untrustworthy opposing attorneys.This Article concludes by theorizing why there is such a sharp contrast between the 1980s study and this contemporary study of law talk between attorneys and their clients