Georgetown Law Faculty Blog

Philip Schrag on "Why Would Anyone Want to Be a Public Interest Lawyer?"

Ten reasons in his speech for the Delaney professorship, available here.

International Development Assistance for Health: Ten Priorities for the Obama Administration

 

            President-Elect Obama has a strong commitment to, and policy on, international development assistance for health. However, during the election, he rarely discussed global health, and with the financial crisis he may turn his attention to pressing economic issues. America’s commitment to global health is not only a moral imperative, but also is critically important to our national interests in security, trade, and human development. A major initiative by the new President on Global Health Diplomacy would help transform America’s world image. Here, I offer ten priorities on global health for the Obama Administration.

 

            With a new administration starting in January, it is an opportune time to propose fundamental reform of America’s policy on development assistance for health:

 

1.    Appoint a cabinet level official on international aid. Development policy cuts across multiple sectors, including foreign affairs, health, agriculture, energy, and the environment. A cabinet level official with direct access to the President is needed to advocate a “health in all policies” approach and coordinate the currently fragmented activities across agencies.

2.    Fulfill America’s pledge to devote 0.7% of GNI per annum to ODA. America should fulfill its pledge to ensure scalable and sustainable global health assistance. G8 leaders in Toyako, Japan this year reaffirmed their long-standing pledges, while committing to full, annual measurements of progress.

3.    Meet basic survival needs of the world’s poor. American aid should be directed primarily to meeting what I call “basic survival needs,” including sanitation and sewage, pest control, clean air and water, diet and nutrition, tobacco reduction, and essential medicines and vaccines. Meeting everyday survival needs may lack the glamour of high-technology medicine or dramatic rescue, but what it lacks in excitement it gains in impact by targeting the major determinants of health.

4.    Strengthen health systems. American aid should aim to improve health systems in developing countries, including human resources, data systems, laboratories, primary care, and public health infrastructure. The G8 experts group in Toyako recommended, and countries committed to, health system improvement as a better way to improve health for the world’s poor.

5.    Reverse the “brain drain.” The WHO estimates that 4.3 million more health care workers (HCWs) are required to meet the Millennium Development Goals, particularly in Africa, which has 25% of the world’s disease burden, but only 3% of the world’s health workers. Rather than improving the workforce in developing countries, the U.S. actively recruits HCWs. The U.S. should build the supply of skilled workers at home, limit international recruitment, and “give back” by building human resources in poor countries through cash payments, scholarships, clinical training, and HCW exchanges.

6.    Improve maternal, newborn, and child health. Each year more than half a million women die in pregnancy, and the same number of children die from easily preventable causes such as diarrhea, pneumonia, and malaria. Many women and children would survive if they received antenatal and postnatal care, skilled birth attendants, childhood vaccines, adequate nutrition, and inexpensive lifesaving interventions.

7.    Create fair trade for developing countries. The United States has aggressively defended free trade through the World Trade Organization, as well as even more stringent regional and bilateral treaties. This has created obstacles for poor countries in accessing essential vaccines and medicines, developing domestic health and safety protections, or competing fairly with richer countries. The world’s poorest people, for example, were made even more vulnerable when the wealthy West and rising East refused to eliminate farm subsidies, leading to the collapse of the Doha round of agricultural trade negotiations.

8.    Collaborate and coordinate with multiple players. A proliferation of actors now occupy the field of global health, resulting in rampant problems of fragmentation and duplication in a sea of funding and activities that span the global health domain. Related to fragmentation is the growing competition between foreign aid workers and local service providers, hindering efforts at greater country ownership and control. The U.S. should work with stakeholders and consult local leaders to foster effective partnerships, create synergies, and avoid destructive competition.

9.    Promote accountability, transparency, and monitoring. Accountability in global health is problematic. WHO is accountable to its Member States, but often lacks detailed and realistic targets. States are accountable to their electorate, but routinely renege on pledges to the poor. Civil society, foundations, and corporations report to an array of different interest groups and cannot be held accountable for their failures. The U.S. should work with the international community to create rules for accountability, transparency, and monitoring progress to achieve goals.

10. Agree to fair terms of international cooperation on global health. The U.S. has been resistant to global health governance, refusing to ratify vital treaties or work cooperatively. The U.S. could make a genuine difference by agreeing to fair terms of cooperation through international agreements, such as a Framework Convention on Global Health. See Lawrence O. Gostin, Meeting Basic Survival Needs of the World’s Least Healthy People: Toward a Framework Convention on Global Health, 96 Georgetown Law Journal 331-392 (2008), available at http://ssrn.com/abstract=1014082.

 

Effective global health governance could dramatically improve life prospects for millions of people and diminish our collective vulnerabilities. That is an ideal worth pursuing by President-Elect Obama.

Lawrence O. Gostin, Linda and Timothy O'Neill Professor of Global Health Law, Georgetown Law

New articles by Don Langevoort and Paul Rothstein

Don Langevoort and Paul Rothstein have just posted papers to SSRN and BePress.

Don Langevoort's article, U.S. Securities Regulation and Global Competition, is forthcoming in the Virginia Law & Business Review and can be downloaded from BePress and SSRN.

Abstract:

This essay introduces and comments on three articles in the Virginia Law & Business Review that address important questions of international competitiveness and U.S. securities regulation: the evolution of the Rule 144A market as a way for foreign issuers to tap U.S. capital without submitting to a mandatory disclosure regime; the emergence of international accounting standards to which the SEC seems eventually ready to submit; and "best execution" differences between trading platforms in the U.S. and the E.U.

Paul Rothstein's article, Comments on Swift and Slobogin: Mental State Evidence, is forthcoming in the Seton Hall Law Review and can also be downloaded from BePress and SSRN.

Abstract:

Excellent, thought-provoking articles have the capacity to inspire readers to take up their own pens or computers. The Articles published in the Guilt vs. Guiltiness Symposium of the Seton Hall Law Review are definitely of that quality. They have prompted in me a number of reflections, a few of which I have set forth below, concerning two of the Articles—Christopher Slobogin’s and Eleanor Swift’s.

These two Articles have much in common. Each concentrates its fire on a particular evidentiary exclusionary rule when applied to bar pieces of a criminal defendant’s evidence of his state of mind. Professor Slobogin argues that the full Daubert scientific reliability rule should not apply to a criminal defendant’s expert psychological evidence of his past mental state because such states are not susceptible of strict scientific proof. Professor Swift deplores what she believes is a defense-evidence-restricting misinterpretation of the hearsay exception for defendant’s state of mind. Both base their arguments on the narrative or story-telling view of trials. Because juries are in the business of choosing among alternative, plausible stories of guilt and innocence, a criminal defendant should be able to tell, with some degree of richness, his story of what unfolded and the kind of person he is. The authors allege these rules or rulings prevent a defendant from doing so.

Both Articles are finely nuanced contributions to the field and provide useful perspectives on some vexing problems. But I think they both have implications that go well beyond the particular evidentiary rules they address and well beyond evidence offered by a criminal defendant. Further, they make some assumptions about what present evidentiary law provides, thereby underplaying possible alternative readings of that law.

John Mikhail: Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge

A new paper by John Mikhail, Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge, has been posted to SSRN. 

This paper will be published in The Psychology of Learning and Motivation: Moral Cognition and Decision Making, Volume 50 (D. Medin, L. Skitka, C. W. Bauman, & D. Bartels eds., Academic Press 2009).

Abstract:

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of crime and tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

What Paul Dean Did

On Wednesday, November 5, I delivered the following remarks at a faculty lunch devoted to reflecting on the passing this summer of Paul R. Dean, who served as dean of Georgetown Law from 1954 to 1969.  Although we were honored to have four of Dean's children with us, the audience I principally had in mind were my colleagues, especially those who had little opportunity to meet Dean and to learn of his contribution to the Law School.  I drew heavily upon The First 125 Years: An Illustrated History of the Georgetown University Law Center (1995) and an oral history that my colleague Peter Byrne and I conducted with Dean in 1991.

 In the annals of the history of American legal education, the year 1870 is almost invariably associated with the start of Christopher Columbus Langdell’s deanship at the Harvard Law School.  That it was also the year the Georgetown Law School was founded usually goes unremarked.  And that’s not really surprising: what might be called the “Harvard synthesis” has long dominated the history of legal education in the United States.  This interpretation takes the reforms of Langdell and his disciple James Barr Ames as the One True Way to run an American law school.  You get a sense of it from the titles of two chapters in Robert Stevens’s excellent Law School: Chapter 4 is “Harvard Decrees the Structure and Content”; Chapter 5 is “Harvard Sets the Style.”  The pull of the Harvard synthesis has been so great that each time Fred Konefsky and Jack Schlegel picked up another in the series of law school histories they reviewed in their 1982 essay “Mirror, Mirror on the Wall” they had the “feeling of inevitability, akin to reading a whodunit novel for the second time.”  Once whatever law school they were reading about established high admissions standards, a graded, sequential, and cumulative curriculum devoted to “pure law,” teaching via the case method, and a self-governing, full-time, scholarship-producing faculty, they observed, “the force of the narrative was spent” and the author was left to grope for a new theme.  Konefsky and Schlegel thought this very odd, because, as they put it, “only in the silliest, deterministic sense was the Langdellian revolution ever inevitable.”  If it were inevitable, it would mean that modern law schools could only be organized one way, and that struck them as a very unlikely proposition, especially in a polity and society like those of the United States, in which lawyers perform so many different tasks for so many different kinds of people.

    I mention all this so that you won’t take it the wrong way when I say that Paul Dean founded the modern Georgetown law school.  In fact, Dean was responsible for our adoption of many of the attributes of an elite law school, but he wasn’t interested in making Georgetown a Catholic Harvard.  He thought Georgetown could be excellent in its own way.  He didn’t envision some of the ways in which we’ve subsequently tried to be excellent, but his struggle to establish the principle of faculty governance and the open-endedness of his concept of a “Law Center” nonetheless made it possible for us to pursue excellence in our own way.

    Paul Dean was born in 1918 and raised in a small town southwest Youngstown, Ohio.  His mother had a eighth-grade education; his father, Edward,  a fourth-grade one.  Edward Dean started working as a water boy in a blast furnace at the age of twelve, advanced to become a manager of two blast furnaces and hundreds of coke ovens, before losing his job in the Depression.  He still managed to provide a college education for all of his sons, including Paul; who graduated from Youngstown State and then enrolled, in September 1940, at Georgetown. Initially rejected by his draft board, he got in two years of law school before leaving for the Navy. During this time he compiled an excellent academic record–in an interview with Peter Byrne and me he called it, with characteristic modesty, “pretty good”–and was named Editor-in-Chief, which, to hear Paul tell it, was “no big deal.”

    For over two years Paul served in the Pacific as the Supply Officer on the minelayer USS Monadnock.  After leaving his sea duty the Navy picked him as one of 38 people to take a course at the Harvard Business School on terminating war contracts.  He lived in a dorm and for four and a half months spent eight hours a day in classes devoted to business school cases.  He learned the elements of accounting, finance, and marketing from the business school’s eminent faculty. He was then assigned to Detroit, where he took law classes in the evening at the University of Detroit.  At the urging of the brother of a shipmate, Paul tried and succeeded in persuading Dean Blythe Stason to admit him to Michigan’s law school.  In the end, he decided to return to Georgetown to complete his legal education.  After graduating in 1946 he clerked for a judge on the D.C. Circuit and was offered a job in the Washington office of Cleary Gottlieb, after having impressed no less imposing a legal personage than Hugh Cox.  At the same time he was pursued by Notre Dame’s dean and the regent of Georgetown’s law school; the regent, Father Francis Lucey prevailed with an offer $500 a year more than Cleary Gottlieb’s–that is, about $4500 a year--not a small sum to a married man and father.

   Dean was one of a group of four young lawyers hired as members of the full-time faculty around 1947.  Particularly after his teaching load settled down and he started coaching Georgetown’s moot court teams he was–as he put it–“happy as a stump.”  Four years in a row he took teams to the national finals, winning twice and, after one defeat by split decision, having the satisfaction of being told by one of the dissenting judges, John W. Davis, that only some unspecified treachery had kept them from prevailing.  In addition to raising the reputation of the law school, the wins also marked Paul as the law school’s ablest young professor.  When in the spring of 1954 the school’s long-serving and increasingly feeble dean, Hugh Fegan, stepped down, Father Lucey asked Paul to take the job.

    To appreciate what Paul did in the next fifteen years as dean, you have to imagine a law school governed very differently than we are today.  From its founding through the late 1920s, the law school was, speaking generally, the project of a group of prominent Catholic lawyers of the same religion, political affiliation, and ancestry as Roger Brooke Taney.  Since 1928 the law school had been overseen by a Jesuit regent; since 1931 that regent had been Father Lucey.  At the time of his appointment Lucey had a doctorate in sociology from Georgetown but no law degree–a situation he would remedy between 1934 and 1941 by taking a few courses a year in the evening from faculty members whose salary he set.  With his degree in hand, he published several contributions to the neo-Scholastic case against the mainstream of American legal thought.  (He had especially harsh words for the legal realists and Supreme Court Justice Oliver Wendell Holmes.)  Along with most of the university’s board of directors, Lucey lived in the Jesuit community in the Jesuit Community in Georgetown University’s main campus, and, like the deans of the foreign service and medical schools, he governed his domain much like a feudal baron.

    By the 1950s Lucey relied heavily on the registrar, Marie Stoll, a registered nurse, to run the school; Fegan had long been cowed by the regent and had neither a secretary nor files.  Stoll scheduled classes, admitted students, made out payrolls, ordered supplies, maintained alumni files, prepared catalogues, and organized the graduate school.  She also was a member of the executive faculty, a common institution at Catholic law schools, which permitted regents to govern through a handful of handpicked faculty members.  No professor had tenure; teaching loads were high; the faculty was overwhelming Catholic and graduates of Georgetown.  The faculty’s publications were, with a few notable exceptions, such as Walter Jaeger’s edition of Williston on Contracts, limited to casebooks–often distributed in mimeo–and bar journal articles. Lucey prepared the budget without any input from the faculty.  When faculty members pushed for a formal guarantee of academic freedom, they were permitted to speak their minds about the subject of their classes, but only insofar as their views were “consistent with the moral principles and religious beliefs to which Georgetown University is dedicated.”

    Much about how Dean won control of the school for the faculty during what he later called “the extremely difficult years from 1954 to 1961" is quite obscure.   Many members of the faculty wore their identity as a university professor lightly and were hard to organized, but the associate dean for the graduate school, Frank Dugan, was a reliable second.  Probably decisive was support from Hilltop.  As I have it from my colleague Sherman Cohn, who was a student at the law school in the 1950s, the head of the Jesuit’s Maryland province was deeply concerned about the financial condition of the university and appointed a president, Edward Bunn (pictured at left), and an academic vice president, Brian McGrath (pictured at right), to put things right.  The law school would be a significant part of any solution Bunn found. 

    At Paul’s suggestion, Bunn convened meetings of the law school’s executive faculty in his office and slowly Dean made progress.  At first, Lucey would simply call Paul in and tell him what he thought Paul needed to know about the budget.  (Paul told Peter and me that from these sessions he became an expert at reading upside down and at a distance.)  By 1957 the law school had a budget committee and Paul could report that Lucey had made “a full disclosure” of the school’s finances.  In the same year, with President Bunn’s support, the executive faculty resolved to hire faculty who weren’t Georgetown alumni so as “to avoid inbreeding.”  The new hires pressed for more support for scholarship and for ending the exclusiveness of the executive faculty.  In a tortuous process, a constitution was drafted and debated; one of its main provisions would make the dean the “sole administrative head and official representative”of the law school.

    Matters appeared to come to a head in 1960.  Bunn appointed another Jesuit, Dexter Hanley, to the law faculty, over Lucey’s bitter opposition, and he directed Marie Stoll to report to Dean, although she continued to resist.  After a meeting that summer, Paul was convinced that Bunn was about to intervene decisively with Lucey and fire Stoll; instead the Jesuit community and the Maryland province announced a series of celebrations of Lucey’s life and work.  Lucey accepted the praise lavished him during these public events but declined to relinquish power.  Then in April 1961, an extremely critical accreditation report strongly sided with what its authors called Georgetown’s “able, respected, forthright, and diplomatic decanal staff” and disputed the representations of the regent.  At last, in the summer of 1961, the Jesuit provincial directed Lucey to step aside and let Brian McGrath serve as regent.  President Bunn announced the change and the appointment of two members of Dean’s second championship moot court team, Kenneth Pye and Richard Gordon, as Associate and Assistant Dean.  He also fired Marie Stoll, who had remained at her post despite requests for her resignation.

    When Paul took stock of the law school in his first year as the undisputed leader of the law school, he thought of it as a kind of “wheel of misfortune.”  When you mentally spun it, whatever phase of the law school came up needed an enormous amount of work.  The student body was academically weak.  Faculty salaries were too low.  The student-faculty ratio was too high.  Without sabbaticals the faculty could not meet “the research obligations of a major law school.”  Relations with alumni were “not good.”  The library was “clearly inadequate.”  The school had no full-time placement officer; the graduate school lacked “substantial intellectual content.”  The curriculum had no required course in legal research and too few electives.  High attrition and the admission of students at times other than in the fall were damaging student morale.  But his highest priority was a new home for the school. “Aesthetically,” Paul told Bunn, the existing buildings were “a nightmare.”  The row houses used as dormitories fell so far short of the fire and housing codes that they would have to be closed, and the library sprawled over thirteen floors in three different buildings.

     I attempted to explain how Paul, with the help of Ken Pye, Dick Gordon, and, later Dave McCarthy, advanced simultaneously on all these fronts in the institutional history that Judy Areen commissioned for our 125th anniversary.  Rather than try to go over that ground here, I’ll just discuss Paul’s rebranding of the Georgetown Law School as the Georgetown University Law Center in the 1950s.  Paul told Peter and me that the older name had no real luster among lawyers.  The “Georgetown Law School” was reputed to give its students an adequate preparation for the bar and occasionally to turn out an exceptional trial lawyer, such as Edward Bennett Williams, but that’s about it.  Paul wanted Georgetown to be the venue for an exciting variety of professional activities and seized upon the term “Law Center” which recently enjoyed a certain among legal educators, as a rubric.  In the academe, most “centers” usually don’t have one, and that was true of Paul’s.  As he put it, “the center was just a device for me to attempt to” get various kinds of activities started up at Georgetown, sometimes on the initiative of a dean, sometimes on the initiative of a faculty member.  He devoted much energy to turning a rather miscellaneous graduate curriculum into a coherent school of “Advanced Legal Education.”  Institutes came and usually went: the Institute for International and Foreign Trade Law, the Nuclear and Space Institute, an Institute for Church-State Law, and an Institute for Law, Human Rights and Social Values,” headed by the Jesuit Dexter Hanley, who was assisted by Sherman Cohn.  Paul told Peter and me that he was particularly proud of Hanley’s institute, because he thought that, as a law school in a Catholic university, Georgetown had an obligation to study the intersection of law, philosophy and religion.  The bellwether of our clinics, the Prettyman program, dates from Paul’s deanship; and his associate dean Ken Pye brought in considerable grant money relating to the criminal justice and the war on poverty.  Finally,  five-year, million dollar grant from the Ford Foundation in 1965 funded the Institute of Criminal Law and Procedure and brought Sam Dash to the Law Center.

    At the same time Paul continued to hire faculty who were, as he put it, “better than we were”–that is, the graduates of elite law schools committed to producing scholarship.  Some hires helped where we lagged behind elite schools–Donald Schwartz and Ed Bradley plugged an embarrassingly large gap in corporation law--but others went to our more distinctive educational mission.  Jack Murphy, for example, taught a seminar on poverty, and Addison Bowman helped staff a new, first-year course on criminal justice.  The new hires created their own momentum for further change, and toward the end of his deanship Paul founded himself, as Pye saw it, caught between “an old guard, some of whom oppose any change at any time,” and “young turks, some of whom wish to reform the world yesterday.”  Several respected and popular professors left in the summer of 1967 for various reasons; one complained about the pace of change and prompted talk of a “brain drain.”

    That said, no single event or concern seems to have persuaded Paul to give up the deanship, which he resolved to do in November 1967 but wasn’t finally permitted to do until June 1969.  In his oral history, he mentioned the general sense of weariness that settled upon him whenever he realized he was having the same discussion about the same curricular matter for the fourth time in his deanship.  I also think he realized that the faculty he built needed a different kind of leader.  “I’m not as much of a participatory democrat as a lot of deans,” he told Peter and me, “and there was a lot of that” in the 1960s.  And I think that, after having seen Father Lucey confuse his own beliefs with the good of the institution, Paul wasn’t about to make the same mistake.

    Before he stepped down, however, Paul had one more chance to argue that Georgetown Law could be great without being like any other great law school.  Back in 1961, the accreditation report that precipitated Father Lucey’s ouster concluded that “at least one top-flight law school should be located in Washington,” that there was none at the time, and that the Georgetown Law Center could be it if it played its cards right.  During the winter of 1968-69, it seems, the committee searching for Paul’s replacement concluded that the only way to make Georgetown a “top-flight law school” was to choose as dean someone with impeccable establishment credentials.  Word that the committee was acting on advice to name some “Ivy-League Professor” and not “a Ghetto Catholic” provoked Paul to protest in unusually harsh terms about the “masochistic tendency” that that sentiment evidenced.  “I detest those Georgetown alumni and faculty who seek some illusory form of external recognition or acceptance through self-deprecation, breast-beating, and carping criticism of our own achievements and our own personnel,” he complained. 

    In January 1969 the search committee unanimously recommended the appointment of Adrian Fisher (pictured at right), a graduate of the Choate School, Princeton University and the Harvard Law School, a protege of Felix Frankfurter’s, and a former Covington & Burling lawyer, among other things.  He was exactly the kind of person Paul had argued against, but when asked his opinion of Fisher, Paul replied that the committee could not have made a better choice.  “I await his arrival with joy,” he assured university officials, “and have promised to be unobtrusive the moment he dons the robe.”

     I’ll close not with my own assessment of Paul but with that of someone who knew him much better than I did.  David McCarthy, who succeeded Fisher as dean, called Paul Georgetown’s “Founding Dean” and said that he accomplished something “unique in the annals of legal education.”  At the same time that he “committed Georgetown to becoming one of the nation’s elite law schools,” he retained and strengthened aspects of it that other elite schools had forgone, including an evening division, an unparalleled clinical program, and courses in trial and appellate advocacy.  “In building for the future,” McCarthy concluded, Paul “did not sacrifice the treasures of our past.  Indeed, he made them pillars of our present prominence.”

New Article on Biosecurity by Larry Gostin

Larry Gostin's piece, "Biosecurity Policy: Are We Safer Today?" and published in Emerging Issues, is now available at LexisNexis, BePress and SSRN.

Abstract:

Lawrence O. Gostin analyzes biosecurity policy since 9/11. He begins with the question: Are we safer now? Then comes a review of biosecurity legislation, followed by discussion of planning to deal with specific diseases and the problems with such an approach, and then an explanation of what the right approach is. He concludes by covering the Model State Emergency Health Powers Act and related civil liberties questions.

Stephen Cohen on the tax consequences of clothing

In particular, Sarah Palin's clothing for her Vice Presidential candidacy.  His analysis appears in the Huffington Post.

Restoring the Human Connection in Mortgage Lending

Emma Jordan has a Viewpoint piece in the American Banker today discussing the mortgage crisis.  The full text of the article, Finding a Way Out of the Lending Crisis, is reprinted below:

Wall Street financial wizards have conducted their businesses as though the complex financial products that generated billion-dollar compensation packages also created a protective moat beyond public accountability.

In the interdependent world of global finance that is now collapsing, home mortgages were abstractions. During this decade the basic human connection between lender and borrower in consumer finance was cut and thrown away as a quaint, easily discarded vestige of a bygone era.

In 1981, at the beginning of the era of retail banking deregulation, I wrote the first state consumer protection law for California to stop the practice of “playing the float” — holding customer deposits to earn money by delaying credits to the customer’s account. This abuse crept into retail banking because the full market effects of lifting the previous interest rate ceilings were poorly understood. Follow-up regulation was necessary to close a window of market failure.

Just as in the current crisis with subprime loans, competition could not and did not do the job after deregulation.

Getting out of this mess will require four things: public recognition of the scope and scale of the backlog of mortgage-related defaults, a return to basic human connections in mortgage lending, aggressive consumer protection, and insistence on generous capital cushions (rainy day funds to buffer unexpected losses).

Bring all the bad loans out of the dark recesses of investment and commercial bank balance sheets and into the light of public review. We cannot fix it until we see it.

Next, back to basics. Remember that houses are homes, not abstract transactions that can be made profitable with unreasonable levels of leverage/borrowing. I am not advocating a return to the horse-and-buggy days of lending. There is still a role for more conservative securitization, in which packages of home mortgages are sold to the restructured Fannie Mae and Freddie Mac, and a well-regulated private market. However, preserving the connection between originator and borrower is more likely to reduce fraud and consumer abuse.

This will require political and economic leadership to encourage Americans to return to the tough, unpleasant discipline of saving. At the heart of the current meltdown is a stark reality: America is the world’s biggest debtor in both the public sector (budget deficits) and the private sector (financial institutions and corporations). The U.S. financial system is now at the mercy of foreign sovereigns and institutions sitting on enormous piles of cash, much of it from the sale of oil and other products to us.

Shifting the bad loans, and the financial instruments based on these loans, on to the balance sheets of commercial banks will not solve the problems we face.

In the new pea and shell game, Bank of America has become the new private shell of choice. B of A, the nation’s largest bank, holds 10% of all deposits. It first absorbed Countrywide Financial, the biggest and most problematic subprime mortgage lender, with a loan from the Fed; this week it absorbed Merrill Lynch, with benefit of a waiver of a Fed rule designed to prevent the bank holding companies with FDIC-insured banks from lending to investment bank subsidiaries.

Bank of America, its depositors, and the FDIC are not the long-term solution to the accumulated pile of loans in default.

In August, the inventory of unsold foreclosed houses reached 750,000. With the takeover of Fannie and Freddie, the federal government will be the owner of some of these properties. These unsold foreclosures are depressing the home equity of the rest of us. RealtyTrac, a real estate value-tracking firm, estimates that one out of every six houses for sale in America is a bank-owned foreclosure.

Federal Deposit Insurance Corp. Chairman Sheila Bair testified Wednesday to the House Financial Services Committee: “The backlog of foreclosures and the credit crunch have combined to depress housing prices and homeowners’ equity dramatically. Steep home price declines are an important dynamic that drives up foreclosure rates. Falling home prices reduce homeowner equity, which then makes it more difficult to refinance or sell a home, leading to lower sales and higher delinquencies.”

Zillow.com estimates that 29% of homes are worth less than their outstanding mortgage balance. These owners have little incentive to keep making mortgage payments. Why not walk away and return the key? Short-sales will only add to the glut of unsold homes, driving prices down even further.

The relationship between the house as collateral for a loan and the many layers of complex new financial products grew ever more strained as the regulatory ground rules became a passive backdrop to a rapidly changing environment that featured three factors that converged to turn routine home loans into an international financial crisis: unregulated brokers, complex financial instruments, and international financial integration. I know that it is not fashionable to talk about human values in the same sentence as global money, but maybe that is the real problem. Where are Frank Capra and Jimmy Stewart when we need them?

Modern financial titans, like Sherman McCoy, the central character of “The Bonfire of the Vanities,” have unwound with a single wrong turn, carrying them from the heights of money, power, and privilege on Wall Street to the anger and rage of the ordinary folks in the South Bronx. Tom Wolfe’s metaphor of the fateful mistake helps us to see how connected we are, even though some may deny that connection.

Last weekend the bonfire raged out of control on Wall Street. This time the wrong turn took place more than 10 years ago, when the first experiments with bad loans were pushed on poor and unsophisticated borrowers who lived in communities that had previously been starved, through redlining, from receiving any loans at all. Target practice in poor communities proved the viability of the abusive terms: no exit fees, pay-what-you-want ARMs, liars loans, low teaser rates, and balloon payments. These same terms were then quickly adapted to middle- and upper-middle-class borrowers in search of a vacation home, or home equity for college tuition.

Within five years, Wall Street hedge funds perfected the lending techniques first used in poor communities. In the new financial structure for housing finance, unregulated, independent brokers sold loans by misrepresentations. Houses that people depend on for shelter became poker chips in a high-stakes game of liar’s poker. The late Gov. Edward Gramlich of the Federal Reserve warned that the introduction of “huge new sources of capital and financing of largely unsupervised subprime mortgage lenders” had caused problems with subprime loans.

He argued for re-establishing the connection between the lender and the borrower through banning the most objectionable provisions and through a mandatory “suitability rule” which would require lenders to make loans that are matched to borrowers’ economic profile and “in the borrower’s best interest.” The link between the borrower and the ultimate holder of the loan could be further strengthened by expanding existing rules to impose on the holder liability for fraud or other problems with the process.

The current crisis has been driven by the lack of adequate levels of cash to absorb the losses from defaults. Sovereign wealth funds have filled this cash gap, becoming the lender of last resort for cash-strapped commercial and investment banking companies like Citigroup and Merrill Lynch only nine months ago. The sovereign funds of Abu Dhabi , Singapore , and China were among a collection of funds that came to the rescue of these companies., China’s four biggest listed banks decided to scale back drastically their purchase of Fannie Freddie securities, triggering the government takeover of Fannie and Freddie just five days later.

Describing the mortgage meltdown is easy, but proposing a solution is less so.

For all the talk of “moral hazard” and “market discipline,” these after-the-fact buzzwords are a Rorschach test of whether you believe the government should play an active, aggressive role in controlling the risk-taking and profit-seeking party, just as the guests have started to arrive and loosen their ties.

Gostin: A Theory and Definition of Public Health Law

The revised and expanded second edition of Larry Gostin's book, Public Health Law: Power, Duty, Restraint, has just been released by the University of California Press.

The first chapter of this book, "A Theory and Definition of Public Health Law", has been posted to SSRN and BePress. 

Abstract:

The literature, both academic and judicial, on the intersection of law and health is pervasive. The subject of law and health is widely taught, practiced, and analyzed. The fields that characterize these branches of study are called health law, health care law, law and medicine, forensic medicine, and public health law. Do these names imply different disciplines, each with a coherent theory, structure, and method that sets it apart? Notably absent from the extant literature is a theory of the discipline of public health law, an exploration of its doctrinal boundaries, and an assessment of its analytical methodology.

Public health law can be defined, its boundaries circumscribed, and its analytical methods detailed in ways that distinguish it as a discrete discipline—just as the disciplines of medicine and public health can be demarcated. With this book I hope to provide a fuller understanding of the varied roles of law in advancing the public’s health. The core idea I propose is that law can be an essential tool for creating conditions to enable people to lead healthier and safer lives.

In this opening chapter, I offer a theory and definition of public health law, an examination of its core values, an assessment of state statutes in establishing the legal foundations of public health agencies, a categorization of the various models through which law acts as a tool to advance the public's health, and, finally, a description of the current debate over the legitimate scope of public health. These are the questions I will pursue: What is public health law and what are its doctrinal boundaries? Why should population health be a salient public value? What are the legal foundations of governmental public health? How can law be effective in reducing illness and premature death? And what are the political conflicts faced by public health in the early twenty-first century?

My definition of public health law follows, and the remainder of this chapter offers a justification as well as an expansion of the ideas presented:

Public health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice.

Several themes emerge from this definition: (1) government power and duty, (2) coercion and limits on state power, (3) government’s partners in the "public health system," (4) the population focus, (5) communities and civic participation, (6) the prevention orientation, and (7) social justice.

            

New Articles Posted by West, Taylor and Gostin

Robin West's University of Pennsylvania Journal Constitutional Law article, Unenumerated Duties, has been posted to BePress.

Abstract:

The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good is a bedrock of both classical and modern liberal theory, yet there is almost nothing in liberal constitutional theory about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of legislators. The full explanation for this absence rests on a set of jurisprudential assumptions that lead moral questions about governance to be understood solely as adjudicative questions of law. Yet it has become quite clear that governmental officials can on occasion be in profound breach of their non-justiciable duty to provide "protection of the laws." If that matters, then constitutional lawyers and scholars ought not wall themselves off from the ensuing dialogue regarding the nature of that duty and its breach.

A JAMA article co-authored by Allyn Taylor, Larry Gostin and Katrina Pagonis, Ensuring Effective Pain Treatment: A National and Global Perspective, has been posted to SSRN and BePress.

Abstract:   

Medical availability of effective pain medication is vitally important domestically and globally. Medical advances have substantially improved the technical capacity to control pain and diminish its consequences. Worldwide, millions of persons with chronic, acute, and terminal conditions have found relief from excruciating pain through medical intervention. However, richer countries have disproportionately benefited from improvements in access to and use of pain medication. The tragedy is that for most of the world's population, particularly persons in poorer countries, effective pain control is entirely unavailable.

Larry Gostin's JAMA article, The International Migration and Recruitment of Nurses: Human Rights and Global Justice, has also been posted to SSRN and BePress.

Abstract:

The international migration of health workers - physicians, nurses, midwives, and pharmacists - leaves the world's poorest countries with severe human resource shortages, seriously jeopardizing the achievement of the U.N. health Millennium Development Goals (MDGs). Advocates for global health call active recruitment in low-income countries a crime. Despite the pronounced international concern, there is little research and few solutions. This commentary focuses on the international recruitment of internationally educated nurses (IENs) from the perspective of human rights and global justice. It explains the complex reasons for nurse shortages in rich and poor countries; the duties of source and host countries; the human rights of health workers; and offers principles for responsible recruiting, focusing on national and global solutions.