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Federalism, Entitlement, and Punishment across the U.S. Social Welfare State
Wendy A. Bach
In a 2018 letter the Trump Administration announced that it was open to proposals to include work requirements and other changes in state Medicaid programs. These proposals came in the form of administrative waiver requests that would allow particular states the flexibility to change the rules of Medicaid eligibility in their state. They were seeking permission to condition the receipt of Medicaid on compliance with work requirements and to “align” the Medicaid program with programs like Temporary Assistance to Needy Families. The Obama administration had consistently rejected such requests on the grounds that work requirements did not further the aims of the Medicaid program, but the Trump administration felt no such qualms, likening Medicaid to Temporary Assistance to Needy Families (colloquially welfare) and arguing that, just like welfare recipients, Medicaid recipients needed to be incentivized to work in order to “build” their dignity. This contest, like many others in the field of social welfare policy, plays out on the terrain of federalism. It is, on the surface, a battle over control among levels of government and over the appropriate rules and structures for particular programs. This chapter argues that these controversies over legal structures, legal rules, and the location of governance, are better understood as arguments about both deservingness and control played out through controversies about administrative structure. In short, programs are called “welfare,” or are urged by some to be more like “welfare,” when what is really meant is that we wish to use the administrative mechanisms of federalism to control, stigmatize, punish, and deter recipients. In contrast, when we perceive recipients as entitled, these mechanisms fall away to be replaced by federally-controlled, far less visible and far more inviting, administrative structures. To make this process visible, this chapter describes the administrative tools of benefit programs as well as the corresponding cultural assumptions tied to each program and then contextualizes a debate like the one over Medicaid work rules using this context.
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Rosado v Wyman: Litigating in the Zeitgeist
Wendy A. Bach
Law library patrons can access the chapter through the link.
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The Future of American Legal Tech: Regulation, Culture, Markets
Benjamin H. Barton
America’s legal technology boom presents a puzzle. On the one hand, America’s market for legal services is among the most tightly regulated in the world, suggesting infertile ground for a legal technology revolution. America has the world’s most robustly protected lawyer monopoly. Its version of the prohibition against the unauthorized practice of law (UPL) is among the broadest and most aggressive in the world because it theoretically bans all non-lawyers from giving any “legal advice” in addition to the more typical bar against filing papers or appearing in court. Likewise, America’s barriers to entering the legal profession are exceedingly high: generally speaking, an undergraduate degree, another three years of law school, a challenging bar exam, an intrusive character and fitness process, and so forth. Between these two barriers, the American lawyer’s monopoly has historically been capacious and jealously guarded. Given this regulatory environment, one would expect America to have a small and beleaguered legal technology sector. Surely wealthy and politically connected bar associations would nip any potential competitors in the bud.
Actually, not so much. The other side of this puzzle is America’s advanced and free-wheeling market for legal tech, which is probably the most robust in the world, as the Sako and Armour chapter herein establishes. The present chapter seeks to explain this seeming puzzle, and then uses that explanation to make some predictions about where legal technology will continue to flourish in America. The explanation is that both America’s seemingly monolithic market for legal services and its uniform regulation of lawyers are, in fact, quite segmented. In some parts of the market, lawyer regulation is almost non-existent (or at least very rarely enforced) – typically at the high end in so-called BigLaw and at the low end in non-profits and legal aid offices serving the indigent. In so-called PeopleLaw, where lawyers serve middle-class Americans and small businesses, regulation plays a significant role and has hampered technological advancement, especially in areas like providing legal advice. This chapter demonstrates how these different markets operate, how they are regulated, and how that explains the current explosive growth in legal tech in some areas, but not others.
This insight also raises a note of caution as we celebrate current efforts at “reregulating” the market for legal services in states like Utah, Arizona, and others. These jurisdictions have rightfully (so far) been praised for allowing non-lawyer and technological innovations into a very constricted market. And yet any lawyer-led regulatory effort, no matter how well-meaning, could easily slide into lawyer self protection, as many (most?) prior regulatory efforts have. The status quo favors innovation in at least the top and the bottom of the market, but we need to push regulators to loosen barriers in the PeopleLaw space, rather than surreptitiously raising barriers where innovation is currently blossoming.
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Russia’s 2020 Constitutional Amendments and the Entrenchment of the Moscow Patriarchate as a Lever of Foreign Policy Soft Power
Robert C. Blitt
Much has been written about the Kremlin’s embrace of the Russian Orthodox Church—Moscow Patriarchate (ROC) as a lever of soft power for advancing Russia’s foreign policy. Based on the substance of the constitutional amendments ratified in July 2020, this chapter reasons that the church-state partnership is poised to grow stronger and more entrenched in the coming years.
After briefly highlighting the energizing effect several key constitutional amendments are likely to have on existing Kremlin foreign policy objectives, this chapter offers an assessment of the ROC’s central role in disseminating and advocating these newly minted constitutional norms across its international platforms for interreligious, civil society and diplomatic engagement. Given that the constitutional amendments position the Church as an even more vital Kremlin instrument and bless President Vladimir Putin’s ability to retain power, the chapter concludes that policymakers should consider divesting the ROC of its veneer as an autonomous religious actor and adopt measures intended to scrutinize its activities and expose them where necessary as manifestations of Kremlin influence.
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Should an Australian Bill of Rights Address Emerging International Human Rights Norms? The Challenge of 'Defamation of Religion'
Robert C. Blitt
The emerging international human rights norm of “defamation of religion,” an ongoing flashpoint in debates at the United Nations (UN) and elsewhere, merits the attention of all parties playing a role in the drafting of new bills of rights. This article uses the case study of defamation of religion, as an emerging norm and the current debate over a possible Australian bill of rights, to argue that a well-rounded drafting process. This drafting process should contemplate the relevancy and impact of emerging norms as a means of enhancing the process, deepening domestic understanding of rights, and ensuring an outcome instrument that is designed to address future rights-based challenges.
Following introductory remarks, Part II of this article offers a brief comparative history of the offense of blasphemy to help contextualize the potential impact of defamation of religion on the international level. Part III discusses how defamation of religion became the focus of dozens of UN resolutions, assesses the challenges associated with grafting the legal concept of defamation onto the mercurial notion of religion and its potential implications for existing international law, and takes stock of the ongoing debate as it stands today. Part IV draws some preliminary conclusions concerning the possible impact of enforcing a norm against defamation of religion, and considers to what extent – if at all – Australia should incorporate a response to this emerging norm in any future bill of rights.
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Springtime for Freedom of Religion or Belief: Will Newly Democratic Arab States Guarantee International Human Rights Norms or Perpetuate Their Violation?
Robert C. Blitt
The Arab Spring has generated unprecedented and seismic political and social upheaval across the Arab world. The reasons for the outbreak of widespread and vociferous public protest are myriad, but generally understood as including long-simmering resentment of government corruption and repression, underwhelming economic development, chronic unemployment and poor respect for human rights, including the treatment of individuals and groups affiliated with political manifestations of Islam. Despite the initial drama surrounding the street rallies, two years on, the pace of change has grown fitful and uncertain.
The purpose of this chapter is to consider one narrow aspect of the Arab Spring. Namely, what does this historic moment augur for securing the right to freedom of thought, conscience, and religion or belief? Further to this question, how — if at all — have the emerging post-Arab Spring governments differentiated themselves from their predecessors on issues including non-discrimination, equality, freedom of expression and the rights of religious minorities — including Muslims dissenting from state-sanctioned Islam, non-Muslims, new religious movements (NRMs), and nonbelievers? And finally, what role, if any, should the larger international community play in advocating or facilitating the adoption of new constitutional and legislative safeguards designed to uphold international human rights norms?
In the end, this chapter argues that the revolutions hold the promise of correcting years of discriminatory and unequal treatment. However, such an outcome remains contingent upon overcoming a dangerous historical paradox that often finds formerly persecuted groups morphing into the role of persecutor. The direction emerging regimes tip will be determined by a combination of internal and external factors.
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The Promise of International Law in Developing a Global Foundation for Social Justice
Robert C. Blitt
Notions of human rights and social justice have become so intertwined that today one can enroll in an academic program that leads to an MA degree in “Social Justice and Human Rights.” The emergence of this interdisciplinary field of study, on the one hand, seems a perfectly natural recognition of the long-standing affinity shared by these two concepts. Yet, on the other, the merger also reasonably may strike one as an exceedingly amorphous frame of reference for advanced education, if only because both concepts are subject to myriad of, and sometimes contesting, definitions. For example, viewed from the perspective of Glenn Beck, such a program could be equated with the curriculum of a Marxist re-education camp if it dared move beyond a one-dimensional, religiously infused mission of helping the poor! At the same time, restricting the definition of social justice in this manner would appear to run against the spirit underpinning the very term. Likewise, human rights, almost from the outset, have been subject to competing visions that grapple, among other things, between the political and economic as well as the universalist and relativist.
Inevitably, preliminary questions arise as to what definition of human rights and whose social justice is being held out as a baseline when engaging in this complex and often controversial area. But rather than be preoccupied with this definitional quagmire, I instead propose in this brief chapter the modest task of highlighting the relevancy of modern international human rights law as a transnational lingua franca for framing and promoting social justice advocacy on the ground.
Law library patrons may access this title and chapter through the link.
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The United States International Religious Freedom Act, Nonstate Actors, and the Donbas Crisis
Robert C. Blitt
This chapter explores whether recent changes to the International Religious Freedom Act (IRFA) furnish the U.S. government with effective tools for engaging with and taking potential action against nonstate actors, such as the self-proclaimed Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR), operating in the context of the Donbas crisis. Among the major amendments to IRFA introduced at the end of 2016, the statute now provides the U.S. government with the formal obligation to report on violent nonstate actors (NSAs) found to be violating freedom of religion or belief. In addition, the executive branch may designate those NSAs found to be violating freedom of religion in a “particularly severe” manner as “entities of particular concern” (EPCs). This framework—which in certain respects mirrors IRFA’s treatment of designated “Countries of Particular Concern”—also opened the possibility for the president to act against EPCs, including the imposition of sanctions.
One might reasonably assume that Congress’ decision to supplement IRFA with NSA-specific provisions would enhance the executive’s ability to confront NSA-based violations of freedom of religion or belief. However, an examination of the first sets of EPC recommendations and designations from 2017 and 2018 put forward by the U.S Commission on International Religious Freedom (USCIRF) and the State Department indicates that IRFA’s capacity to successfully respond to such violations is being hampered by both statute-based and implementation-related challenges. These challenges are equally evident in the context of the Donbas conflict, and in turn underscore serious questions regarding the relevancy and effectiveness of IRFA’s NSA provisions.
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Regulation of Health Care Services, Facilities, and Transactions
Isaac ("Zack") D. Buck and Deirdre Madden
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Ensnared by Custom: Mary Astell and the American Bar Association on Female Autonomy
Judy Cornett
Rhetoric—the arts of practical discourse that we broadly define as the use of symbols to influence belief and action—has something to say about contemporary legal theory and practice. Law and rhetoric in the West were born together nearly 2500 years ago in the Mediterranean. American law has eschewed its rhetorical roots since the late nineteenth century. Denying law’s rhetorical nature helps to construct an impartial façade, shoring up law’s legitimacy. Admitting the rhetorical nature of law would be to admit its partiality, or the point of view inevitably inscribed with every textual choice. At the same time, rhetorical theorists have turned their attention to many subjects other than law. Though many rhetorical scholars today still study legal rhetoric, much of their focus is on high-profile court cases and Supreme Court opinions. This volume’s contributors believe it is time for an expanded conversation between law and rhetoric, placing a broader variety of legal texts in conversation with a broader variety of rhetorical traditions than is typically available. Each essay here makes a connection between one or more significant texts on rhetoric and contemporary legal texts.
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Martha Stewart: Insider Trader?
Joan MacLeod Heminway
The public is justifiably confused. Most who know the story believe that Stewart sold her ImClone shares while in possession of nonpublic information that had the potential to move the market in ImClone shares. This type of unfairness in stock trading commonly is thought to constitute insider trading; those who have an inside track to market-sensitive information should not be able to trade on it.
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Non-Investment Finance in an NFT World
Joan MacLeod Heminway
Recent years have witnessed the rise of NFTs as vehicles for non-investment finance, including in nonprofit and political fundraising. As with other financial sectors in which NFTs have a role, the use of NFTs in financing nonprofits and political campaigns and committees has revealed gaps and ambiguities in existing legal regulatory systems. Appetite exists to evolve legal frameworks to complete and clarify applicable bodies of law and regulation.
This chapter undertakes to illuminate and reflect on the use of NFTs in financing nonprofits, political campaigns, and political committees. It begins by reviewing general aspects of the non-investment Internet finance environment and then describes and illustrates the use of NFTs in nonprofit and political fundraising. The chapter also offers guidance and reflections on core issues under applicable law and regulation and reflections on legal and regulatory questions and approaches relevant to non-investment finance using NFTs.
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The Legal Regulation of U.S. Crowdfunding: An Organically Evolving Patchwork
Joan MacLeod Heminway
One must at first acknowledge the rapid growth of the crowdfunding market over the recent years, both within the United States and worldwide. With the conduct of diverse crowdfunding activities, various complex legal issues arose. While the laws and regulations in the United States endeavoured to keep pace, at both state and federal levels, with the diversity and evolution of crowdfunding businesses, there is at the date of this report no comprehensive legal framework encompassing crowdfunding as a whole. This report thus aims to shed some light on the existing legal framework in force in the United States and on some of the complex issues raised by crowdfunding activities.
Law library patrons can access this title through the link.
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