Apr 2, 2015 Nicole HuberfeldHealth Law
A longstanding and confounding divide exists between treatment of the individual and care for the collective. While the former is deemed health care, the latter is called public health, and American medicine has long maintained this dichotomy (a story that Paul Starr told decisively in The Social Transformation of American Medicine). This divide exists not only in the medical establishment but also in the law pertaining to it. While the field called health law tends toward being subject matter inclusive, it paradoxically has excluded public health law as a separate discipline. In part, this dichotomy may result from public health’s focus on the whole community rather than individual relationships, rights, and treatments. But also, this divide is strengthened by the historic primacy of private law rather than public law in health care, a hierarchy that has reinforced bias toward protecting medical stakeholders’ rights in their professional space. In addition, the law has sidestepped race, gender, economic, and other disparities in health care, allowing inequalities to fester. Though health care reform took on some of these issues, health disparities are a persistent problem. Fortunately, Professor Wiley is battling these old lines with her new work.
Health Law as Social Justice makes a convincing case that health law includes more than health care finance, bioethics, and regulation of related entities and markets. Instead, Wiley argues, health law and public health must be intertwined to effectively battle health disparities. The article contends that such a merger could be facilitated by drawing on the social justice movement and its understanding of the societal factors that affect certain industries and their corresponding fields in the law. Wiley argues that America’s deeply entrenched health disparities can only be uprooted by the communitarian considerations inherent in the booming study of social determinants of health, which she urges can translate to policy reform, effective advocacy, and legal change through broadened health care law inquiries. Continue reading "Addressing the Health Care/Public Health Dichotomy through Justice"
Apr 1, 2015 Jaya Ramji-NogalesLexImmigration
Moria Paz,
Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at
SSRN.
What is the relationship between international human rights law and migration? Though many might assume a simple one – human rights protect migrants – the reality is much more complex, raising profound questions about state sovereignty, politics, and the nature of international law. In her new paper, Human Rights, Immigration and Border Walls, Moria Paz maps out the central tension of this relationship, providing an insightful and balanced description of deep structural problems with the current human rights approach to migration.
Paz defines clearly for the reader the tension between sovereignty and individual rights that underpins the relationship between human rights and migration. She argues that the two normative doctrinal approaches available to resolve questions of migration necessarily clash. According to Paz, the human rights approach locates the right to a minimum level of human dignity in the individual, whether or not that individual has complied with formal immigration requirements. Yet these rights exist in a statist international legal regime that provides states with absolute authority to decide who can enter, “under what conditions, and with what legal consequences.” In other words, states and their members have the right to decide who can become a member of their political community and how the state’s resources will be allocated. This tension is, of course, grounded in age-old questions about international law’s ability to constrain state behavior. Yet the highly politicized nature of migration law sharpens this perennial conflict, leading to interesting and unexpected outcomes. Continue reading "The Borders of Human Rights"
Mar 31, 2015 Linda MullenixCourts Law
How many federal courts scholars can identify what is meant by the litigation “black hole?” If you know the answer to this question, chances are you teach mass tort litigation or worked on asbestos litigation thirty years ago. And if you want to know what became of that black hole, Judge Eduardo C. Robreno of the Eastern District of Pennsylvania offers some answers.
Asbestos litigation was a seminal mass tort litigation and its procedural history provides an interesting parable about dispute resolution modalities. The flood of asbestos litigation began in the late 1970s and for approximately twenty years the Judicial Panel on Multidistrict Litigation resisted creation of an asbestos MDL. After the Judicial Conference issued a report on the nationwide asbestos litigation crisis, the Panel relented and finally created asbestos MDL-875 in 1991, docketed in the Eastern District of Pennsylvania.
The famous “black hole” refers to the contention by attorneys that the creation of the MDL—and the transfer of their cases to the MDL court—would send their asbestos cases into a litigation black hole, and that their cases would disappear forever. In issuing its order, the MDL panel took pains to assure lawyers that the MDL would not do so. Continue reading "Into Litigation’s Black Hole: A Cosmic Solution"
Mar 30, 2015 Serena MayeriLegal History
In my employment discrimination course, I use Diaz v. Pan American Airlines (5th Cir. 1971), overturning Pan Am’s ban on male flight attendants, to illustrate how airlines and other employers tried and failed to exploit Title VII’s bona fide occupational qualification (BFOQ) exception in the years after the Civil Rights Act’s enactment. Pan Am defended its female-only policy as necessary to satisfy the “psychological needs” of its mostly male passengers, who “overwhelmingly” preferred to be served by “young girls.” In Diaz, the court ruled that the “essence” of an airline’s business was not to titillate male travelers, nor to offer maternal comfort to anxious fliers, but rather to keep passengers safe from harm. Excluding men, therefore, could not be “reasonably necessary to the normal operation” of an airline.
Phil Tiemeyer’s Plane Queer reveals that Pan Am’s defense of the male steward ban was even more insidious than previously understood. The airline argued that male flight attendants performing traditionally female ministrations, such as tucking blankets around dozing passengers, would repulse their (assumedly) male, heterosexual, and homophobic customers. Tiemeyer argues persuasively that Diaz and the other early challenges to airlines’ sex BFOQs are properly seen as queer equality cases, belying conventional assumptions that gay employment rights advocacy merely piggybacked on, or at least postdated, movements for racial justice and women’s rights. Continue reading "Queering the History of Sex Discrimination"
Mar 27, 2015 Sean CoyleJurisprudence
In a letter to the semi-pagan Nectarius (Epistle 91, §4), Saint Augustine sets forth one of the most fundamental problems of political life: political philosophers who have sought and ‘indeed described’ justice in private discussion have utterly failed to secure justice for the earthly city. The problem could not be clearer: true justice is not an utter mystery to human beings. It can be made present to thought and speech. But even amongst those who have bothered to obtain a rational image of it, this justice is absent from their activities and their communities. Justice in the earthly community is only ever a relative and internal justice, an ‘ordered agreement of mind with mind’ (De Citivate Dei XIX.13) that is limited to ‘the establishment of a kind of compromise between human wills…’ (IV.4) Even the laws of the most civilised society of Augustine’s time (Rome) represented but the distorted form of justice one finds in a criminal organisation.
The subject of justice in the earthly civitas (i.e. the human world) is examined at length in Frank Garcia’s impressive book, under the modern title of ‘global justice.’ The scope of the book is determined by two factors: (1) it is concerned with the specific dimension of global justice which applies to international economic activity; (2) it analyses the subject according to ‘three takes’ which have dominated recent Western political thought (Rawlsian liberalism, communitarianism, and consent theory) (P. 3.) My focus here is upon the second of these delimiting factors. It is given the following explanation:
There are of course many more theories of justice within Western political theory, and a comprehensive approach to the ethical foundations of global justice would need to engage in a comparative study of justice in normative traditions both within and beyond the West.
Of interest in this passage is its juxtaposition of two critical ideas: on the one hand, the identification of global justice as being, in the last end, an ethical problem; and on the other hand, the belief that the resolution of the ethical problem would come about through a comparative (i.e. empirical) investigation of normative traditions. The underlying implication is (I believe) not that ethical questions can be dissolved by, or exposed as, empirical concerns, but that some form of comparative study represents the realistic limit of what can be achieved by way of progress in the face of so much entrenched division. If so, this reflects the more pessimistic implication of Augustine’s letter: justice in the worldly community is not genuine justice but is forever limited to a kind of compromise between human wills. Continue reading "Theorising Global Justice"
Mar 25, 2015 Stacey DoganIntellectual Property Law
Annemarie Bridy,
Internet Payment Blockades,
Fla. L. Rev (forthcoming), available at
SSRN.
The law of intermediary liability in intellectual property reflects a constant struggle for balance. On the one hand, rights owners frustrated by the game of whack-a-mole have good reason to look for more efficient ways to stanch the flow of infringement. While this concern is not a new one, the global reach and decentralization of the Internet have exacerbated it. On the flipside, consumers, technology developers, and others fret about the impact of broad liability: it can impede speech, limit competition, and impose a drag on economic sectors with only a peripheral relationship to infringement. As the Supreme Court put it thirty years ago in the seminal Sony case, the law must seek a “balance between a [rights] holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce.”
For the most part, the battle of these competing interests has played out in litigation, legislation, and deals involving online intermediaries whose services are used to infringe. The Digital Millennium Copyright Act’s notice-and-takedown procedures, the peer-to-peer copyright battles, keyword advertising suits, and lawsuits against websites like eBay are giving shape to the relative rights and responsibilities of IP owners and intermediaries. Continue reading "Internet Payment Blockades: SOPA and PIPA in Disguise? Or Worse?"
Mar 24, 2015 Katharine BartlettFamily Law
Two truths that feminists hold to be self-evident are: (1) that this society requires a more pro-active, supportive state that recognizes the fact of dependency and assumes some responsibility for the needs that dependency creates; and (2) that when the state intervenes in the lives of poor, minority women, it discriminates against and penalizes those most in need of its support. Advocates of each proposition generally also adhere to the other as if the two propositions were completely compatible: Those making the case for a supportive state adopt as a principal goal the reduction of society’s profound inequalities, while critics of the state’s discriminatory intrusions into the lives of the poor take for granted the necessity for state interventions to address dependency.
Wendy Bach’s article advances both propositions sympathetically—so sympathetically that the reader initially might understand the article to be primarily a celebration of the convergences in feminist insight. But read on. The work is, above all else, a caution. The case for a supportive state is a powerful one, she argues; yet current institutional realities mean that state-sponsored programs typically make women more vulnerable, not less. This is not inevitable, she argues, but to avoid it, reformers need to pay more attention to the specificity of the mechanisms the state employs. Otherwise, Bach argues, calls for a more supportive state may yield measures making it easier for middle-class women to work and raise children, but they won’t dismantle the punitive mechanisms that so acutely affect poor women and minorities. (P. 329). Continue reading "Can the Supportive State be Non-intrusive?"
Mar 23, 2015 Margaret DaviesEquality
The first thing I liked about Kirsten Anker’s book was its title. The idea of a declaration of interdependence is extremely evocative, and multilayered. It foregrounds values of connection and interdependence as basic to legal relations, within and between cultures, and also between human societies and our ecologies and environments. At the same time, it constitutes an ironic reflection on non-Indigenous histories, with their insistence on independence. Assertions of independence have been vital to shaping the nation-state world we currently live in, and which forms the legal and philosophical backdrop to this book. Declarations of independence may still have a defensible role in a world which oppresses marginalized groups and fails sufficiently to promote the self-determination of colonized peoples. But interdependence goes further, and acknowledges interconnection between peoples and their worlds – it reasserts that there are relations of dependence between groups, and relations between their laws. It also, and this is the real depth of this particular book, shows how the very act of defining and understanding any law in this context brings into play multivocal exercises of recognition, translation, and negotiation.
Throughout the book, Anker emphasizes that she seriously regards all sides of a relation as ‘dependent’ on the others (as well as, to a lesser degree, ‘independent’). In the context of Anker’s study, which primarily concerns legal relations between Indigenous and non-Indigenous people in Australia, the ‘sides’ of the relation are primarily two. When the two sides come together to negotiate or determine their legal relations, each is dependent on the other. This is not to deny the existence of state dominance or, on the other hand, to say that there can be no self-determination or autonomy for Aboriginal people. Rather it conveys the way that ‘decisions and their consequences will always be taking shape in relation to other communities and governments, at different scales.’ (P. 194). In order for there to be any real encounter between different legalities, they each have to be open to the other, and in particular to the process of being reconstituted by the other. Anker argues this mutual dependence by reference to philosophical tradition. In particular she points out that approaches to recognition and translation will be extremely problematic if understood or practiced simply in terms of one (sovereign) side having all of the power to recognize the other, or being permitted to assume that their own conceptual tools are sufficient to render the other’s world intelligible. For recognition and translation to work and for justice to be a plausible goal, the interpretive and conceptual horizons of both sides must shift. Even more importantly, Anker also argues this case inductively from detailed readings of significant native title cases, and through an analysis of the nature of negotiated settlements. At their most positive, even within the decision-making framework of state law, these sources show people coming together in a jurisgenerative space, in which ‘law’ appears as a dialogue rather than being given from above. (P. 103). At the same time, the opportunities for state law to misrecognize and mistranslate Aboriginal law, because of doctrinal dogmatism, ideology, or other limitations, remain considerable. The detail provided by Anker to illustrate these points is extraordinary, and quite impossible to do justice to in a short review. Continue reading "Interdependent Legalities"
Mar 20, 2015 Jennifer ChaconCriminal Law
Alexandra Natapoff,
Misdemeanor Decriminalization, 68
Vand. L. Rev. ___ (forthcoming 2015), available at
SSRN.
Have we reached a turning point in criminal justice? Political leaders, criminal justice actors and even the general public have come to agree that our criminal justice system is broken. It delivers a product that is long on punishment, but short on justice, mercy, efficiency, cost-effectiveness and rationality. Consequently, states are moving to shorten some drug sentences, to decrease overall imprisonment rates, and to legalize or decriminalize marijuana possession. We are even witnessing manifestations of leniency from the public: witness the California voters’ 2014 roll-back of that state’s notorious “three-strikes” law.
Clearly, we are at an inflection point. But is this a true turning point? Or are we witnessing another historical moment in which harsh and unequal criminal justice systems demonstrate the uncanny ability to achieve preservation through transformation in the face of widespread criticism? In her article Misdemeanor Decriminalization, Sasha Natapoff helps her readers to wrestle with this question. The answer may not be as encouraging as we might have hoped. Continue reading "Decriminalization and Its Discontents"
Mar 18, 2015 Frank PasqualeTechnology Law
Recently, Scott Peppet, Dan Solove, and Paul Ohm appeared in a great Al Jazeera comic on big data and privacy, called “Terms of Service.” The comic covered the growth of data-driven companies from scrappy startups to the behemoths we know and fear today. It’s also a good introduction to the problem of discrimination by data and algorithm. For those who want to continue the conversation, Nathan Newman‘s article is an excellent guide to the issues.
Newman has already made several important interventions into the scholarly debate over the effects of big data. Marketing industry leaders have argued that data-driven marketing increases the accuracy of ad targeting. Critics have contended that the opacity and complexity of data flows makes it impossible for the average citizen to understand how they are being rated, ranked and judged. The White House Big Data Report from 2014 was a major validation for critics, compiling numerous problems in the big data economy and taking seriously threats on the horizon. Continue reading "Typecastes: Big Data’s Social Stratifications"
