Now showing items 21-40 of 334

    • Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements

      Ruger, Jennifer Prah
      One would be hard pressed to find a more controversial or nebulous human right than the "right to health"-a right that stems primarily, although not exclusively, from Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and requires governments to recognize "the right of everyone to the highest attainable standard of physical and mental health." While activists, nongovernmental organizations, and scholars have made significant progress in promoting a human rights approach to health and the field of health and human rights more generally, the question of a philosophical and conceptual foundation-a theory-for the right to health has fallen through the cracks that emerge from an interdisciplinary intersection of medical ethics, international relations, international human rights law, health policy, health law, and public health law. International human rights law scholars working in public health and health policy have typically focused on government's binding legal obligations to promote and protect both public health and human rights. They have drawn on human rights to address public health issues, especially the HIV/AIDS pandemic. Although scholars in this field have, in the words of one academic, "developed a sophisticated understanding of civil and political rights," they "have failed systematically to examine the meaning and enforcement of social and economic rights." And while General Comment No. 14, issued by the UN Committee on Economic, Social, and Cultural Rights (CESCR), provides the most reliable report on the right to health, it too, by necessity and purpose, lacks a systematic philosophical grounding for the right to health. The few international relations scholars and practitioners who do focus on health issues have provided primarily three dominant frameworks for international health cooperation: national and security interests; domestic and global economic development; and international human rights. Human rights approaches have filled a "moral gap" in the international global health discourse left primarily by economic and geo-political governance frameworks for international health issues. But the human rights strategy has been only moderately effective, for example in efforts to control and mitigate the HIV/AIDS epidemic and to implement the constitution of the World Health Organization (WHO). Furthermore, international relations as an academic discipline has not focused on providing a theory-based in moral and political philosophy - of a right to health.
    • Revisiting the Question of French and American Difference

      Kessler, Amalia
      Mitchel de S.-O.-L'E. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy. Oxford: Oxford University Press, 2004. Pp. 382. $99.00 (cloth). Mitchel de S.-O.-L'E. Lasser's Judicial Deliberations is an ambitious, important, and innovative book, which adds greatly to our understanding of particular legal systems, of the ways in which differing configurations of discourse and institutional practice promote core rule-of-law values, and of comparative methodology itself. Beautifully written and wideranging in scope, it is likely to become a classic in the field. Lasser pursues three different, but interrelated goals, which I address, in turn, below. First, he describes judicial discourse in the French and American legal systems (as well as in the European Court of Justice (ECJ)) and does so in a way that significantly challenges and reworks the paradigm long established among American comparative-law scholars. Second, he argues that each system's judicial discourse (along with its ideological and institutional commitments) leads it to pursue (and follows from) its own distinctive solution to fundamental problems in democratic governance, including ensuring judicial accountability and promoting meaningful deliberation. Third, he reflects on the nature of comparative methodology and argues for the need to overcome comparatists' tendency to identify themselves as proponents of either similarity or difference.
    • Narrative Transactions - Does the Law Need a Narratology?

      Brooks, Peter
      I have for some time been puzzled about the status of narrative in the law, and more particularly the status of talk about narrative in the law. On the one hand, there has been plenty of legal scholarship-starting more or less from the "storytelling" issue of Michigan Law Review in 1989 - on the uses (and the virtues) of "outsider" narratives in the law, and even before that there was Robert Cover's foundational Nomos and Narrative. It has become something of a commonplace - too much of one - that legal storytelling has the virtue of presenting the lived experience of marginalized groups or individuals in a way that traditional legal reasoning doesn't. This view has of course been criticized, and some of the more naïve assumptions about the moral benefits of storytelling have been questioned. On the other hand, I am not aware that all this story talk has made any difference to legal actors. Trial advocates tell stories - they have always told stories - and clinical training in advocacy includes some attention to construction of the story you will tell in the courtroom (which of course echoes the training in rhetoric given to lawyers in antiquity, when rhetoric and the law were inextricably interwoven). In particular, it is assumed that juries often decide verdicts on the basis of the more persuasive story presented at trial. Yet you search in vain for any explicit recognition by legal decisionmakers that how a story is told can make a difference in legal outcomes. That is not quite true: there are moments when the law notes that a story has been mis-told, or not told according to the rules (of evidence, for instance), or doesn't make sense as told. Appellate courts are to some degree the enforcers of rule-governed storytelling. Yet they don't talk narrative talk. They are conspicuously lacking in the analytic vocabulary and tools of literary "narratology," for instance. Narratology - which I shall discuss in more detail later on- distinguishes between events in the world and the ways in which they are presented in narratives. It pays attention to the parts of narrative and how they combine in a plot; to how we understand the initiation and completion of an action; to standard narrative sequences (stock stories, one might say); and to the movement of a narrative through a state of disequilibrium to a final outcome that reestablishes order. Narratology also studies perspectives of telling: who sees and who tells, the explicit or implicit relation of the teller to what is told, the varying temporal modalities between the told and its telling. I know of only one instance when the Supreme Court shows an explicit, quasi-narratological awareness of narrative as a category of thought and presentation of reality (I'll come back to it later), and it has not produced a sequel.
    • The Emergence of Public Prosecution in London, 1790-1850

      Smith, Bruce P.
      Historians of English criminal justice administration have long asserted that criminal prosecution in England before the second half of the nineteenth century was overwhelmingly "private" in nature. Before the mid-nineteenth century, so the received wisdom goes, "prosecution was almost invariably the sole responsibility of the victim." As the subject's leading historian has observed, "the typical prosecution" in England in the eighteenth and early nineteenth century was "at the initiative of a private citizen who was the victim of a crime and who conducted the prosecution in almost all cases." Indeed, Parliament did not even establish a public prosecutor's office until 1879, and, thereafter, the office only gradually assumed prosecutorial responsibilities in a small subset of criminal cases. Considered from a comparative perspective, England's apparent disinterest in public prosecution before the second half of the nineteenth century appears strikingly anomalous. By 1800, countries on the European Continent had long come to rely on public officials to investigate and conduct criminal cases. Even within Britain itself, public prosecution existed by the early years of the nineteenth century: in Scotland, by that time, an official known as the "Procurator Fiscal" essentially "monopolized all serious criminal prosecutions." And in the United States, which adopted the principal aspects of English criminal law and procedure, states, counties, and cities routinely relied upon public prosecutors to investigate, manage, and argue a broad range of criminal cases by the early years of the nineteenth century.
    • Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy

      More, Sagit
      Throughout the last century, the modem welfare state has been widely considered a major source of rescue and relief for people with disabilities. By providing mechanisms of cure and care, so the common view goes, the welfare state has improved the social conditions of disabled people, rescuing them from a life of starvation and severe destitution. In this view, welfare provides a refuge, while the real responsibility for the persistent poverty of disabled people lies primarily with the structure of the market economy, with the existence of negative social attitudes, and with disability's "objective" and inherent limitations. In this Article, I challenge this view, arguing that although welfare has indeed provided some relief to people with disabilities, welfare laws and policies have also had a significant role in developing, furthering, and reinforcing the power hierarchies to which people with disabilities are subjected. Through an investigation of Israeli disability policy, I show how hierarchies of welfare benefits reflect national values and collective imageries but at the same time reinforce and re-constitute those values and modes of imagination. Although the particularities and contexts of these hierarchies differ from one country to another, the result, I contend, is the same: those at the top, usually disabled veterans and disabled workers, enjoy better compensation or social insurance schemes, but in fact suffer from similar patterns of ableism and power as other disabled persons, and these patterns eventually render them equally inferior to and of a lesser value than the non-disabled. This Article uses a critical perspective that I term Disability Legal Studies (DLS) in order to emphasize its commitment to the field of critical legal theory and its close association with disability studies. Disability studies, a relatively new academic field, investigates issues such as the social construction of disability, ableism and the power structure that supports and enhances the privileged status and conditions of non-disabled persons in relation to disabled persons, the genealogy of social categories such as normalcy, and the politics of bodily variations.2 The basic approach that all disability studies scholars share is that disability is not an inherent, immutable trait located in the disabled person, but a result of socio-cultural dynamics that occur in interactions between society and people with disabilities. Although disability studies' critique is not altogether new to some legal scholars, it has not yet gained adequate recognition in legal discourse. I maintain that the time has come to identify, introduce, and label the field of DLS, bring it to light, attend to its premises, and incorporate its lessons into legal theory and practice. I further suggest that attending to DLS would bring a shift in writing on disability and the law from a focus on doctrinal analysis or policy advocacy to a research regarding the constitutive role of law in the production of disability.
    • What's a Judge To Do?

      Balmer, Thomas A.
      Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005. Translated from the Hebrew by Sari Bashi. Pp. xx, 423. $45.00 (cloth). Holmes famously declared, "[I]f my fellow citizens want to go to Hell, I will help them. It's my job." In this, as in many of his pithy aphorisms, Holmes exaggerated for effect, and few judges would describe their role in quite those terms. But Holmes's meaning was plain: A judge's role is not to implement his or her own vision, but rather to permit the implementation, consistent with constitutional limitations, of the public's agenda as expressed through democratic political institutions, even if the judge believes that agenda is foolish. And it was, of course, Holmes's willingness to uphold social legislation despite his private doubts about its efficacy or wisdom that helped establish his place in American history. Aharon Barak has a different take on the judge's role. In his view, "the role of the judge is to help bridge the gap between law and society's changing needs ...." When interpreting a statute, a judge is to look for the "purpose" of the statute, which, Barak asserts, will be determined by the "'fundamental values of the system and fundamental human rights"' (p. 171). "[T]he judge should give a statute the meaning that responds to society's needs and protects democracy" (p. 285). In the many aspects of the judge's role in which, according to Barak, the judge may exercise discretion, he or she should "choose the solution that seems best to him or her," and, in his view, "that solution is the one that the judge thinks is just" (p. 212). These passages, like the quote from Holmes, exaggerate the more nuanced view of the judicial role that emerges from Barak's new book, Purposive Interpretation in Law. Yet they clearly point to a theory of judging that is far more expansive and unconstrained than most American judges would recognize - or that they or the public likely would accept.
    • The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance

      Sommers, Roseanna; Bohns, Vanessa K.
      Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to underappreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches. In two preregistered laboratory studies, we approached a total of 209 participants (“Experiencers”) with a highly intrusive request: to unlock their password-protected smartphones and hand them over to an experimenter to search through while they waited in another room. A separate 194 participants (“Forecasters”) were brought into the lab and asked whether a reasonable person would agree to the same request if hypothetically approached by the same researcher. Both groups then reported how free they felt, or would feel, to refuse the request. Study 1 found that whereas most Forecasters believed a reasonable person would refuse the experimenter’s request, most Experiencers—100 out of 103 people—promptly unlocked their phones and handed them over. Moreover, Experiencers reported feeling significantly less free to refuse than did Forecasters contemplating the same situation hypothetically. Study 2 tested an intervention modeled after a commonly proposed reform of consent searches, in which the experimenter explicitly advises participants that they have the right to withhold consent. We found that this advisory did not significantly reduce compliance rates or make Experiencers feel more free to say no. At the same time, the gap between Experiencers and Forecasters remained significant. These findings suggest that decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches—that they are voluntary—relies on an assessment that is subject to bias. The results thus provide support to critics who would like to see consent searches banned or curtailed, as they have been in several states. The results also suggest that a popular reform proposal—requiring police to advise citizens of their right to refuse consent—may have little effect. This corroborates previous observational studies that find negligible effects of Miranda warnings on confession rates among interrogees, and little change in rates of consent once police start notifying motorists of their right to refuse vehicle searches. We suggest that these warnings are ineffective because they fail to address the psychology of compliance. The reason people comply with police, we contend, is social, not informational. The social demands of police-citizen interactions persist even when people are informed of their rights. It is time to abandon the myth that notifying people of their rights makes them feel empowered to exercise those rights
    • Empire States: The Coming of Dual Federalism

      Ablavsky, Gregory
      This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization—a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns. In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, and separatist movements.
    • Sexual Privacy

      Keats Citron, Danielle; Macht, Sophia
      Those who wish to control, expose, and damage the identities of individuals routinely do so by invading their privacy. People are secretly recorded in bedrooms and public bathrooms and “up their skirts.” Such images are used to coerce people into sharing nude photographs and filming sex acts under the threat of public disclosure. People’s nude images are posted online without permission. Machine-learning technology is used to create digitally manipulated “deep fake” sex videos that swap people’s faces into pornography. Each of these abuses is an invasion of sexual privacy—the behaviors, expectations, and choices that manage access to and information about the human body, sex, sexuality, gender, and intimate activities. Most often, women, nonwhites, sexual minorities, and minors shoulder the abuse. Sexual privacy, this Article contends, is a distinct privacy interest that warrants recognition and protection. It serves as a cornerstone for sexual autonomy and consent. It is foundational to human dignity and intimacy, and its denial results in the subordination of marginalized communities.
    • Beyond Nudging: Debiasing Consumers Through Mixed Framing

      Godi, Matteo
      The consumer-protection literature can be divided into two camps: laissez-faire libertarianism and paternalism. Paternalism, as advanced by behavioral law and economics, calls for nudging consumers toward their utility-maximizing preference. Laissez-faire libertarianism, instead, calls for relying on rational-choice theory and the free market to allocate consumer goods. Although each camp presents the other as its diametric opponent, this Note shows that this dichotomy is overstated. Neither camp is incompatible with the other, nor infallible on its own. Through an original behavioral study, this Note reveals flaws in the fundamental assumptions of both camps: that no information can be conveyed neutrally (behavioral law and economics) and that consumer-oriented regulation diminishes autonomy (rational-choice theory). It does so by focusing on an understudied form of consumer-protection regulation: mixed framing. Legal scholars and regulators have largely ignored this phenomenon, yet it offers a more robust and actionable regulatory approach than the existing literature and one that is distinct from both paternalism and libertarianism. By examining the case study of food-safety regulations, this Note sketches the analytic and normative case for why regulators should embrace mixed framing. Using a process of debiasing through mixed framing, agencies can promulgate rules that minimize the risk of deceptive advertising tactics and maximize the provision of neutral and complete information—without running afoul of the First Amendment or falling into paternalistic restrictions on autonomy.
    • The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional

      Chua-Rubenfeld, Sophia; Costa, Frank J. , Jr.
      Imagine you apply to be a cashier at a supermarket. At the beginning of the interview, you sign an employment application. You don’t get the job, and your interviewer’s remarks make you suspect it’s because you are Muslim. You sue in federal court under Title VII of the Civil Rights Act of 1964. The supermarket moves to dismiss the suit because your employment application included an agreement to arbitrate all Title VII disputes. The court dismisses your case and compels arbitration.
    • How to Realize the Value of Stare Decisis: Options for following Precedent

      Varsava, Nina
      When courts deliberate on the implications of a precedent case in the adjudication of a new dispute, they generally frame the issue as if there are three paths through---{1) follow the precedent, (2) overrule, or (3) distinguish-without acknowledging that option number one contains its own garden of forking paths. My chief aim in this paper is to delineate and evaluate several options for following precedent. I show that we can respect the doctrine of precedent or stare decisis without committing to any one particular method. I argue further that we have good reason to refrain from endorsing any single method for following precedent, and I propose instead a variable approach-one that is sensitive to the contextual factors that make one method preferable to another.
    • Copyright and the Holocaust

      Pessach, Guy; Shur-Ofry, Michal
      This article explores the interface between copyright law and the Holocaust. The Holocaust's duration and scope, its occurrence in the midst of the twentieth century with photography and film technologies already available, and its setting at the heart of Europe, yielded countless documents, diaries, notes, memoirs, musical works, photographs, films, letters, and additional artifacts. On the victims' part, many of those items-including secret archives comprised at various ghettos, music composed in concentration camps, and personal diaries-manifest an explicit act of real-time historical documentation for future generations. On the perpetrators' side, some materials were produced as a result of organized documentation and others-such as Joseph Goebbels' diaries or Hitler's Mein Kampf--comprise records of prominent figures in the Nazi regime. Numerous Holocaust-related materials are still subject to copyright protection. Yet, the impact of copyright law on the memory of the Holocaust remains largely unexplored.
    • Interpreting the Outer Space Treaty's Non-Appropriation Principle: Customary International Law from 1967 to Today

      Pershing, Abigail D.
      SpaceX plans to have its first astronauts land on Mars by 2026. Blue Origin wants to take tourists to space by April 2019. The European Space Agency points to the possibilities of mining Helium-3 on the moon to provide cleaner energy here on Earth. Space tourism, exploration, and exploitation are very real possibilities in the near future—at least technologically. Legally, however, the way forward is less clear.
    • Beyond Fragmentation: On International Law's Integrationist Forces

      Megiddo, Tamar
      What is a country to do when international law presents it with two conflicting yet binding norms? This question has been haunting international law scholars for the past two decades. It has arisen with particular fervor in the context of the proliferation of international legal regimes and, specifically, international tribunals since the 1990s.
    • What is a War Crime?

      Hathaway, Oona A.; Strauch, Paul K.; Walton, Beatrice A.; Weinberg, Zoe A. Y.
      What is a war crime? The question appears to have a simple answer: a war crime is a violation of the law of war. But do all violations of the law of war qualify as war crimes? And are all war crimes violations of the law of war? These questions are not new. In 1942, Hersch Lauterpacht, a leading international lawyer who assisted the prosecution of the Nazis for war crimes at the International Military Tribunal (IMT) in Nuremberg, wrote a memo in which he asked, “Is there a definition of war crimes?” More than seven decades later, the answer to his question remains unsettled.
    • Foreign Affairs in Court: Lessons from CJEU Targeted Sanctions Jurisprudence

      Chachko, Elena
      There are many myths about the role of courts in foreign affairs and national security in Western democracies. Traditionally, courts and scholars in different jurisdictions have taken the view that executive action related to foreign affairs has unique attributes, making it ill-suited for review by unelected judges with limited institutional competence.1 This approach has relied on a combination of functional considerations and concerns about the democratic legitimacy of judicial interference with inherently political foreign and security policies.
    • Waternoten Trapa natans L. van Maasvlakte 2

      Langeveld, Bram W.
      In dit artikel worden vondsten vermeld van een drijvende plant: de waternoot Trapa natans L. Komt in Nederland voor maar is inmiddels zeldzaam