Oxford University Press's Blog, page 273

Which famous woman from STM are you?

Throughout our history, women have made varied and important contributions to the fields of science, technology, and medicine (STM). Their pioneering work, often fought against overwhelming social prejudice, still affects our lives to this day.

Women’s History Month is the ideal time to celebrate the achievements of female scientists and medics from past to present—and perhaps discover some new inspiration. Which famous woman in STM history are you most like? From Marie Curie to Rebecca Lee Crumpler, take our quiz below to find out!

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9 facts about women and the economy

International women’s day is a worldwide event that celebrates the achievements of women and calls for gender equality across the board; from the political spectrum to social issues. Women’s economic empowerment is a key issue, as it is noted that “when more women work, economies grow.”

To celebrate International Women’s Day, we have some key facts that demonstrate that changes still need to be made to help women became an active part of economics; whether it is through studying economics itself or the number of women who work in the field, to employment. Despite more women being in work than before there are still stark differences on their experiences.

1. There are a lot of initiatives to change the underrepresentation of girls studying STEM (Science, Technology, Engineering and Maths) subjects but not much has been focussed on economics considering the figure is lower. It is noted that in the UK, the proportion of girls studying for an economics degree is lowering year by year than increasing.

2. Similarly, only 15.5% of academic economists’ positions are held by women in the UK and the figure is even lower in the US at just 13%. There are also studies that suggest female economists’ papers take much longer to be peer reviewed in top journals than male economists.

3. Men still continue to dominate academic economics just as much as they do in the financial and banking sector. Only one in four of people who attain a senior role in this sector are a female.

4. In the third quarter of 2015, the UK had the 5th largest female employment rate among member states of the European Union. Sweden topped the list and Greece had the lowest.

5. More women work part-time than men; 42% of women in employment were working part-time compared to only 13% of men. Reasons for this range from how women take on part time-work or flexible working hours after having children. Women who work part time after having children are more likely to be affected by the gender pay gap in the UK.

6. It is noted that women in developing countries work more than men. In most countries women spend more time doing housework that is unpaid whilst men have more leisure time.

7. Of all the Nobel prizes awarded for economics, only one has gone to a woman- Elinor Ostrom in 2009. Elinor was recognised “for her analysis of economic governance, especially the commons.” This is often seen to be emblematic of the problems associated with the lack of women in the field of economics.

8. Women in the European Union report care and family responsibilities as the reason for not being in the labour force whereas only 3% of men report the same issue.

9. A study by the American Economic Association found out that three thirds of the people mentioned in economics textbooks are all male. The study found out that whenever women are mentioned in the textbooks they tend to take more passive roles – be it they are involved in household work or fashion etc. When the textbooks mention men they are represented in relation to business. These reading materials that students are using reinforce the traditional stereotypes of both men and women; that economics and business is a man’s world.

As we celebrate International Women’s Day how far do you think women have come to achieving gender equality? Is there still a long way ahead?

Featured image credit: Like a boss by Brooke Larke. Public domain via Unsplash.

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Exploring religious diversity in higher education

In his recent post, “Declining Exposure to Religious Diversity” (24 January), Jeremy Bauer-Wolf notes some striking results of a survey conducted by the Interfaith Youth Core of more than 7,000 students at 122 American colleges and universities. The ongoing Interfaith Diversity Experiences and Attitudes Longitudinal Survey (IDEALS) is tracking this cohort of students from their first day on campus in fall 2015 until their graduation in the spring of 2019. The survey measures the extent of their interfaith experiences on campus, and tracks developments in their attitudes toward religious diversity.

The IDEALS data relating to students’ experiences in their first year of college point to some noteworthy findings. There are significant declines in discussion of “religious or spiritual topics with teachers” (43% to 25%), working “together with people of other religious or nonreligious perspectives on a service project” (49% to 32%), attending “religious services for a religious tradition that is not your own” (37% to 20%), and discussing “religious diversity in at least one of your high school courses / general education courses” (52% to 40%). There are less pronounced declines in attending “an interfaith prayer vigil/memorial” (18% to 13%) and participating in “an interfaith dialogue” (20% to 16%). These data identify challenges for the Interfaith Youth Core and other organizations committed to cultivating interreligious dialogue and the benefits it can bring to society.

The academic study of religion offers a different approach to understanding religious diversity, one that also offers benefits to society and complements interfaith dialogue. While interfaith dialogue emphasizes the undeniable value of personal engagement with others whose worldviews and ways of life are different from one’s own, the academic study of religion—also commonly known as religious studies or comparative religion—intentionally avoids the personal and the subjective. A sound religious studies approach, like those of other academic disciplines, depends on critical assessment of empirical data and not on subjective truth claims. At the same time, religious studies demands empathy and fair-mindedness, avoiding judgmental attitudes and biases.

As Bauer-Wolf points out, about “91% of the students indicated in the survey that they respect people who have religious perspectives different from their own—85% said they admire people of other faiths and beliefs.” Bauer-Wolf also notes that students’ exposure “to different religions through more informal channels—such as studying or socializing with somebody of another faith—was reported more widely” (up from 66% to 79%). These data bode very well for the efficacy of the academic study of religions. Courses on religion offer ideal platforms for learning from a more distanced or objective perspective about the religions of the world. Such learning depends on the sort of empathy and fair-mindedness that the survey suggests is alive and well among first-year students. Moreover, it provides precious opportunities for learning about the other—both other individuals and other cultures—without requiring that the student relate directly with the other in a personal manner.

 The academic study of religion offers a different approach to understanding religious diversity, one that also offers benefits to society and complements interfaith dialogue.

This same argument can be cast within the context of “religious pluralism,” a topic referenced in the post by Eboo Patel, founder and president of the Interfaith Youth Core. For the academic study of religion, a pluralistic attitude is good if it means having empathy for the religious sensibilities of others. Sometimes, however, “pluralism” refers to the belief that every religion is just as “true” as one’s own or that all religions ultimately say the same thing. Such pluralism is to be avoided, in part because this belief cannot be verified empirically or logically. Most professors of world religions would readily agree that it is wrong to advocate for this or any other specific religious perspective. A subtler problem involves the fact that studies of world religions too often are based on hidden assumptions of such pluralism; as, for example, when all religions are forced to fit into an overly detailed grid of common features—as if the underlying, “true” nature of religion can necessarily be reduced to such a list (again, this cannot be proven empirically or logically). As many critics have noted, typically these features ring suspiciously true to Christianity, which every historian will acknowledge is the religious foundation upon which the academic enterprise of religious studies has in large part been built.

“Declining Exposure to Religious Diversity” includes a helpful consideration of parallels between religion and politics. A sound approach to studying the world’s religions ought to parallel how we approach the study of political viewpoints. Professors ought not to advocate for one view or the other but should encourage rigorous analysis of the history, nature, and implications of various political perspectives. So, too, should religious studies professors offer opportunity for sophisticated analysis of religions without advocating for one being any more true or worthy than another (including, of course, not being religious).

The academic study of religions would seem to be an ideal tool for student engagement with the religious perspectives and ways of others, not demanding—indeed, avoiding—personal religiousness while at the same time facilitating increased knowledge of very important aspects of global cultures. The IDEALS data indicates that 62% of students prefer to keep “their viewpoints to themselves.” Many professors of religious studies adopt precisely this as a matter of principle. Others take the opposite approach, contending that openness about one’s personal religious perspectives is the best means of ensuring honest and fair treatment of the subject matter. In either case, the ultimate objective remains the same: a fair, empathic study of the religions of the world. Such a study is vital for maintaining an informed citizenry and a civil society.

Featured image credit: Library La Trobe study by andrew_t8. Public domain via Pixabay.

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Why the past is disputed and academic historians (don’t) matter

Recent years have witnessed a proliferation of disputes over how the past should be used, with alt-right demonstrations over the planned removal of Confederate monuments in Charlottesville/VA, the Hindu nationalist rewriting of Indian history, or the refashioning of the rural past in post-coup Thailand among those most widely reported. In all these instances, academic historians have either been sidelined, or have become the victims of politically motivated onslaughts. Still, the disputes per se are not a late modern phenomenon. Similar debates occur in any society that records its past. They form part of historical culture. But why is this so, and is there really nothing distinctive about the contemporary experience?

Having a past and knowing it was considered to be a mark of civilisation. In the mid-twelfth century, the English chronicler Henry of Huntingdon remarked that what marked animals and brutes out was their absence of knowledge about their origins. Animals could not acquire it, and brutes would not. Similar sentiments were expressed in India, China, Persia, and the wider Islamic world. They formed part of the cultural repertoire with which literate societies sought to distinguish themselves from each other and from those over whom they exercised or they wished to exercise cultural and political hegemony.

But where did this need for a past come from? Here, the inherent truth claim of history was key. In the seventh century, the Spanish cleric Isidore of Seville, echoing classical Roman ideas, distinguished between three types of narration:

“Histories are true deeds that have happened; plausible narrations are things that, even if they have not happened, nevertheless could happen; and fables are things that have not happened and cannot happen, because they are contrary to nature.” [Isidore of Seville, Etymologies, trans. Stephen A. Barney (Cambridge, 2006), p. 67]

History recorded what was true. Similarly, in China, Sima Qian (145/35–86 bce) illustrated just how concerned he was with recording truthful history when he claimed that he had incurred the displeasure of Emperor Wu on refusing to malign one of the ruler’s generals — and that he was castrated as a result. Writing history was about uncovering the truth, even at considerable personal cost to the author. 1,500 years later, Ibn Khaldun (1332-1406) prefaced his monumental world history, the Kitab al-I’bar, with the Muqaddima, a book-length introduction. It illustrated just how frequently errors had been committed by Ibn Khaldun’s predecessors, listed reasons why such mistakes had occurred in the first place, and suggested means by which they could be avoided. Good history must, after all, be truthful.

The inherent truthfulness of history could confer upon the past an almost sacral character. This was literally so when a sacred text delineated the origin as well as the early history of a people. But secular origin could equally acquire a quasi-religious aura. Independence days, forebears, and moments of past crisis crystallised essential historical truths that legitimised particular sets of values and institutions.

The quasi-sacral character of history is essential for understanding disputes over its meaning. Precisely because history was meant to be true, a reading that violated one’s own understanding of the past could only be wilfully false. Disputes over the meaning of history, how it should be remembered, or which elements of it merited memorialisation, are thus never just about the past. Rather, they are concerned with the search for reliable and reputable precedent with which to reshape the present and forge the future.

Saint Isidore of Seville by Bartolomé Esteban Murillo, 1655. Public domain via Wikimedia Commons.

Superficially, this might explain why academic historians have been marginalised in disputes that are concerned more with the meaning of the past for the present, than with the factual accuracy of its representation. Yet, their self-image as truth tellers notwithstanding, academic historians have always participated in utilising the past to serve contemporary ends. Indeed, as recently as 2014 it was—albeit controversially suggested that history ought to be written with this ultimate aim in mind. Other factors must therefore be taken into account.

In common English parlance, labelling someone a ‘historian’ can thus refer to a Professor of History, a TV presenter with only limited training in history, or a disgraced newspaper columnist with none. The phenomenon reflects a paradox at the heart of late modern historical culture: the very factors that helped bring about academic history also created the conditions for its marginalisation. The professionalisation of history was made possible by the economic expansion of Europe and America in the nineteenth century, and the desire to formalise and standardise training for forms of employment where specialist skills were deemed necessary. But rapid economic, social, political, and technological change also expanded the audience and the range of producers of history. Partly because of the centrality of the past to forging communal identities, and the sacral character history conveyed upon ideas, groups, and movements, professional historians never had a monopoly on interpreting the past.

The resulting multiplicity of voices—even if not free of tension—could prove fertile and enriching. Yet it did so only while a fundamental premise was shared: historians might interpret their evidence differently, but they should never invent it. In many a recent dispute, we are, however, no longer dealing with different readings of the past, but with outright fabrication.

Somewhat paradoxically, falsehoods can be told precisely because the inherent truthfulness of history is believed to provide legitimacy for modern beliefs. The resulting chasm between claims and evidence then requires that criticism be invalidated. Often, a discourse of faux egalitarianism is invoked: because of their expert status, those pointing out untruths are labelled a hostile elite denying the will of the people. It must be sidelined or, better still, silenced. And fact is either hollowed out at the root of its meaning (‘You have your facts and I have mine’) or disregarded and denied. The way is then clear to introduce ‘facts’ as claims which have no evidential base whatsoever.

The rejection of views, not because they are mistaken or flawed, but because those who voice them possess expert knowledge, is a distinctly late modern phenomenon. All the more reason why professional historians should not stand by! For if we fail to speak up, we abrogate our responsibility towards the very societies we study. If we allow their experiences, lives, and thoughts to become mere playthings to mendacious moderns, to be plundered and pillaged at will, we dehumanise both the past and the present.

Featured image credit: The Plumb-pudding in danger — or — State Epicures taking un Petit Souper by James Gillray, c.1818. Public domain via the British Library.

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What’s in her name?

It must top the list of famous misquotes: Shakespeare’s Juliet did not say “a rose by any other name would smell as sweet.” But she did ask “What’s in a name?” thus pinpointing a problem that still vexes women today. When I turned 40, I rebranded myself from Pat to Patricia, a shift that was personally gratifying yet had no serious effects. But some women have had to contemplate more serious consequences.

There is only one female scientist who is famous throughout the world, but she had several names to choose between and has been represented in various guises. Most commonly celebrated as the double Nobel Prize winner who dedicated her life to science and invented the word “radioactivity,” she has also been castigated as a Jewish whore, a steely obsessive, and a savvy media manipulator. When she visited the United States in two whirlwind trips, she showed the President that she could act as a hard-headed negotiator.

When she married a Parisian, this scientific pioneer patriotically Frenchified her first name, but retained her Polish identity by opting to call herself Marie Skłodoswka Curie. This was no nostalgic whim: because of France’s restrictive legislation on married women’s rights, how she signed herself carried practical implications. French wives were non-people who belonged to their husbands and could not possess property in their own name—so although Skłodowska Curie had discovered radium, she was not entitled to take out patents or profit from any industrial applications.

Appreciating these financial realities casts a different light on Skłodowska Curie’s apparently disinterested determination to share the benefits of her research into radioactivity. She declared it to be a universal property of nature: “There were no patents. We were working in the interests of science. Radium was not to enrich anyone. Radium…belongs to all people.”

That elegant phrasing was put into Skłodowska Curie’s mouth by her self-appointed American publicity agent, an enterprising journalist who identified herself professionally as Mrs William B. Maloney, but is now often patronisingly referred to by her nickname, Missy. After much persuasion, Skłodowska Curie agreed to sail across the Atlantic in 1921, although she was reluctant to appear on public platforms. When she was applauded by 3,500 women in Carnegie Hall, she managed only 27 timid words of thanks.

Marie Curie with her daughters Irène (left; future Irène Joliot-Curie) and Eve (right) in the United States, 1921. Public domain via Wikimedia Commons.

Accompanied by her two daughters, Eve and Irène, the frail physicist was propelled through a gruelling fund-raising tour whose returns far exceeded expectations. The donors were overwhelmingly female, but unlike her European supporters, they welcomed her as a champion in the battle against cancer rather than as a scientist. Weakened by years of exposure to radioactivity, depressed by her husband’s sudden death in a road accident, and demoralised after being hauled through the press for an unwise but passionate love affair, Skłodowska Curie was exhausted long before her seven-week visit came to an end. But she was determined to achieve her ambitious goal: to provide her research institute in Paris with one gram of radium.

And she succeeded. Standing on the White House lawn, she accepted the nation’s gift from President Warren Harding, but he had been taken aback by the terms she imposed. In order to avoid any allegations of financial gain, Skłodowska Curie insisted on receiving the radium itself, not the money it would cost, even though prices were lower in Europe. And in a last-minute legal tussle, she ensured that the radium was given not to her, but directly to her Paris Institute.

Loyal and persistent, Maloney became one of Skłodowska Curie’s few intimate acquaintances. Another was the English physicist Hertha Ayrton, who had abandoned her childhood name Phoebe to adopt the identity of a Teutonic goddess. An ardent suffragist, she was nominated for membership of London’s Royal Society, but turned down on the grounds that she was married to a fellow physicist, William Ayrton.

Speaking to a journalist, Ayrton proclaimed, “I do not agree with sex being brought into science at all. The idea of ‘woman and science’ is completely irrelevant. Either a woman is a good scientist, or she is not.” Many women shared her idealistic vision of science, but over a century later it still has not been fully realized. And unfortunately, names still matter.

Featured image credit: Pierre and Marie Curie in the laboratory, circa 1904. Public domain via Wikimedia Commons . 

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Creating a natural health system

Public health has seen multiple revolutions over history: from the recognition of the connection between water, sanitation, and health, to breakthroughs in medicine and genetics. We are currently in the midst of a new revolution in public health where humans are recognised as social beings connected to their community and their environment.

Accompanying this revolution in public health is a growing consensus on the connection between nature and health. Modern psychology now takes an active interest in the restorative and stress-relieving functions of contact with nature. The reduction in stress results in lowering inflammation in the body, which results in less disease such as dementia, diabetes, heart disease, and depression. Furthermore, connection with nature and animals from a young age has been shown to reduce the risk of allergies, inflammation, and other diseases.

Much of what we consider to be a “normal” lifestyle is incredibly recent in the history of our species—the creation of the city was just 6,000 years ago and industrial production began less than 400 years ago. As a result, the human mind and body have both developed under conditions radically different from those we live in today. Thus, our disconnection from nature is resulting in a massive rise of non-communicable diseases across the world—and the damage we are causing to the environment is increasing the risk of natural disaster and poor health.

“Our disconnection from nature is resulting in a massive rise of non-communicable diseases.”

There is no one solution for our current crisis; to build a natural health system we must not only change our approach to healthcare but our attitudes as a society. Although healthcare professionals already have several tools to combat chronic disease, many current treatment options run risks that must be weighed carefully. Prescribing nature is increasingly becoming accepted as an option for helping patients with chronic illness while limiting side effects and adverse reactions. Initiatives such as Health Walks, Park Rx America, Green Gyms, and Beat the Street have proven to be incredibly successful at connecting people to nature and improving their health. Looking forward, environmental interventions such as social prescribing—where doctors prescribe time spent in nature or the community—will become an increasingly common and cost-effective way of treating long-term conditions.

Image Credit: Nature by gayulo. CC0 Public Domain via Pixabay.

A truly natural health system encompasses not only primary care, but also education, transport, and infrastructure. More and more people worldwide are living in urban environments, so we must ensure that urban landscapes in the future reduce and remove any barriers to accessing green space such as lack of knowledge, distance, mobility constraints, and social exclusion. Furthermore, while urban green spaces are usually highly designed, it is hugely beneficial to create space for wilder areas such as woodland and wetland, as well as specific therapeutic areas.

Bogota, Columbia has emerged as one of several cities across the world that best exemplifies the idea of a natural health system. The city’s holistic approach has seen green spaces reclaimed and an extensive network of cycle paths built in recent years. On Sundays and public holidays principal highways are closed so that residents must use their bikes to enjoy the city. Education programmes teach motorists and pedestrians to respect each other, and even mental health initiatives like parajiando (birdwatching) foster mental restoration through connecting to nature. Increasingly, cities are understanding that increasing and improving access to nature can lead to huge benefits for healthcare.

Image Credit: Industry by SD-Pictures. CC0 Public Domain via Pixabay.

Additionally, as a species we must do more to prevent, mitigate, and survive the unprecedented environmental damage we are reaping on the planet. Many of the environmental health challenges in the 19th and 20th centuries, such as overcrowding and smog, required a local solution. However, in the 21st century, the parallel crises of climate change, biodiversity loss, ocean acidification, and ozone depletion need a global solution. Effectively managing the consequences of the anthropogenic era is integral to public health in the future.

Inherent in the recognition of nature as a public health asset must be the realisation of how much we all lose by disconnecting from or degrading our natural environments. If we realise this and act soon, forests, lakes, seashores, urban parks, and woodlands may continue to provide settings for recovery and recreation, while simultaneously delivering basic services for our health and survival.

Featured Image Credit: Zen by NeuPaddy. CC0 Public Domain via Pixabay .

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Who danced it best?: Bob Fosse’s “Hot Honey Rag”

The revival of Chicago, the 1975 Bob Fosse musical, has been playing on Broadway and around the world for more than two decades, and is now the longest running American musical in Broadway history. That’s quite a turnaround from its original production. In 1975, Chicago had the bad luck to open the same season as A Chorus Line, and its cynical depiction of 1920s Windy City murder and corruption didn’t connect with audiences like the earnest, striving dancers who put their lives on the line for a chance at Broadway gold. Chicago was a hit but not a smash, ran a bit over two years, and didn’t entirely make back its capitalization. A Chorus Line was an instantly beloved show that ran 15 years and earned millions. Chicago went 0 for 11 at the Tony Awards, bested by A Chorus Line in every category, including Best Musical. But the culture finally caught up with Chicago when it reappeared two decades later. Its dark satire of collusion between media and the legal system, rejected by many in 1975, now had the sting of truth about it. The Chicago revival has gone on to surpass the original production of A Chorus Line by over 2,000 performances.

The Chicago revival features new choreography “in the style of Bob Fosse” by longtime keeper of the Fosse flame, Ann Reinking. But the concluding “Hot Honey Rag” is a recreation of Fosse’s original dance, formerly called “Keep It Hot.” Fosse made it a compendium of all the steps he learned as a young man working in vaudeville and burlesque—the Shim Sham, the Black Bottom, the Joe Frisco, “snake hips,” and cooch dancing—and made it the ultimate vaudeville dance act. Just as A Chorus Line’s closing number, “One,” has become an iconic musical moment, so Chicago’s finale, “Hot Honey Rag,” danced by the triumphant girls-who-got-away-with-it Roxie Hart and Velma Kelly, is now a Broadway standard.

But who danced it best? Here’s an informal look at the wide-ranging interpretations of this classic musical comedy dance by performers from around the world.

1. Ruthie Henshall (Roxie) and Ute Lemper (Velma) created the roles in the West End production that began a fifteen-year run in 1997.

2. In 1999, Fosse, an anthology of his dances, won the Tony Award for Best Musical and played over 1,000 performances. Here, Dana Moore and Meg Gillentine perform “Hot Honey Rag” along with “Nowadays” during a performance filmed for PBS’s Dance in America series.

3. The 2002 film version of Chicago, choreographed and directed by Rob Marshall, became the first movie musical to win the Academy Award for Best Picture since Oliver! in 1968. Marshall slowed down and simplified the steps, but sped up the editing for Renée Zellweger (Roxie) and Catherine Zeta-Jones (Velma).

4. New York’s annual “Broadway Backwards” concert puts a gender twist on iconic songs and dances. In 2014, Michael Berresse and Tony Yazbeck tackled “Nowadays” and “Hot Honey Rag” with macho bravado.

5. The roles of Roxie and Velma are glamorous, larger-than-life stars that make them naturals for drag queen appropriation. Here, two popular contestants from television’s RuPaul’s Drag Race, Bob the Drag Queen and Thorgy Thor, sashay their way through the number in 2016.

6. But there’s nothing quite like the original. Here’s Roxie and Velma, Gwen Verdon and Chita Rivera, performing the complete “Nowadays” and “Hot Honey Rag” from the show’s original 1975 production.

Featured image credit: “Chicago the Musical Banners on Broadway” by Broadway Tour. CC BY-SA 2.0 via Flickr .

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The political process case to overturn Quill v. South Dakota

By deciding to review Wayfair v. South Dakota, the US Supreme Court has thrust itself into the long and contentious debate about the proper tax treatment of internet sales. As I argue, the Court should use this opportunity to overturn Quill v. North Dakota. In light of the relevant political process concerns, the Supreme Court should overrule Quill in the Court’s role as guardian of the states against federal commandeering.

In 1992, the Court in Quill held that, under the dormant Commerce Clause of the federal Constitution, a state may not require an out-of-state retailer to collect the state’s sales tax. States, Quill held, can only impose tax collection responsibilities upon sellers who are physically present in the taxing state. Quill was decided before the internet and electronic commerce became central features of American economic life.

As a matter of law, an internet purchaser who pays no sales tax at the time of their purchase is obligated to forward tax on their purchase by themselves. In practice, few purchasers pay tax on their internet purchases. Thus, many internet purchases are effectively sales tax-free since the tax is neither withheld by the out-of-state seller at the time of purchase nor subsequently paid by the in-state shopper.

This is unfair to the states, as the states in practice cannot collect the sales tax owed to them on internet purchases. This result is also unfair to in-state, brick-and-mortar sellers who must collect sales tax and are consequently disadvantaged vis-a-vis out-of-state competitors who can sell effectively (albeit illegally) sales tax-free on the internet.

Concurring in Direct Marketing Association v. Brohl, Justice Anthony Kennedy suggested that it is time for the Court to reconsider Quill and thereby permit states to require out-of-state vendors to collect sales taxes on their internet sales even though such vendors lack physical presence in the taxing state.

South Dakota embraced this suggestion. In a direct challenge to Quill, South Dakota required out-of-state sellers to collect its sales tax if a seller’s annual sales volume to South Dakota purchasers meets or exceeds $100,000, or consists of 200 or more separate transactions.

Wayfair and other internet sellers without a physical presence in South Dakota challenged their new sales tax collection obligation under this South Dakota law. South Dakota’s Supreme Court struck that the state’s new sales tax collection law as violating Quill. The US Supreme Court is now reviewing this decision of the South Dakota court.

The US Supreme Court could use Wayfair to reaffirm Quill and its physical presence test. That would leave matters where they have stood for the last twenty-five years: Since Quill is a dormant Commerce Clause decision, Congress can overturn it legislatively and permit states to impose sales tax collection responsibilities on out-of-state sellers.

It would be better for the Court instead to grapple with the obvious unsuitability of Quill and its physical presence test in the modern world. That Quill’s physical presence rule is incompatible with internet commerce is the easy part. The more challenging task for the Court is its respect for its own precedent, particularly when (like Quill) that precedent can be modified or overturned by Congress.

Notwithstanding the Court’s compelling concern for its precedent, the Court should overturn Quill in the Court’s role as guardian of the states against federal commandeering and considering compelling concerns about the political process. These concerns include the tactical advantage which Quill bestows in the political process upon the internet and mail order industries, the importance of the states in the structure of federalism, the centrality of sales taxes to the financing of state government, the severe impediment which Quill and its physical presence test impose upon the collection of these taxes, and the unique disadvantages of the states in the federal legislative process.

In our system of federalism today, the states are structurally important but politically disadvantaged. Federal legislators receive no political benefits from helping the states. This contrasts with the political support – votes and campaign contributions – private groups bestow for legislative backing.

Quill effectively commandeers the states to subsidize internet commerce by not taxing it. Quill also hands great political advantage to the defenders of the status quo, the internet and mail order sales industries which effectively sell their goods sales tax-free because Quill’s physical presence test denies the states the ability to impose tax collection responsibilities on out-of-state internet and mail order sellers. In the federal lawmaking process, defenders of current law have the politically easier task of blocking change in a process which affords them many opportunities to obstruct change. Quill gives that advantage to the internet and mail order industries which merely impede legislation to preserve the status quo – as they have done successfully for over two decades.

Because of these political process concerns, the Supreme Court itself should, despite the force of stare decisis, use Wayfair to overturn Quill rather than rely on Congress to abolish Quill’s physical presence test. That test severely hampers the states’ collection of their sales taxes in the face of the growth of internet commerce. The Court should overturn Quill in the Court’s role as guardian of the states against federal commandeering, and in light of compelling concerns about the political process, which hands great tactical advantage to the internet sales industry as defender of the effectively tax-free status quo.

Featured image credit: Judge hammer court by Daniel_B Photos. Public domain via Pixabay.

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In 2018, the CJEU will determine the future of the Internet

In its amicus brief submitted in relation to the US Microsoft Warrant case, the European Commission emphasised that:

“In the European Union’s view, any domestic law that creates cross-border obligations should be applied and interpreted in a manner that is mindful of the restrictions of international law and considerations of international comity.” (Amicus brief, p. 5)

The Google France case, coming before the Court of Justice of the European Union (CJEU) sometime in 2018, will show whether the Commission is equally firm in its views when it is the EU’s law that creates such cross-border obligations.

The matter coming before the CJEU stems from the well-known Google Spain case in which the CJEU articulated a right to have certain search results delisted where a search is based on a person’s name (the “right to be forgotten”). The question now before the CJEU relates to the scope of jurisdiction of such orders.

Prompted by an action by the French data protection authority (CNIL), the Conseil d’État of France has advanced essentially the following questions to the CJEU:

Must a search engine operator deploy the de-referencing to all of the domain names used by its search engine?
If not, must a search engine operator only remove the links on the domain name corresponding to the State in which the request is deemed to have been made or on the national extensions used by that search engine for all of the Member States of the European Union?
Must a search engine operator use ‘geo-blocking’? If so, only from an IP address deemed to be located in the State of residence of the person benefiting from the ‘right to de-referencing’, or even, more generally, from an IP address deemed to be located in one of the Member States?

As to ‘geo-blocking’, it is worth recalling that, already in 2000 a French Court was willing to rely on geo-location technologies in relation to an order for the blocking of content in France (see: Yahoo! case). Given that the accuracy of geo-location technologies has increased, ‘geo-blocking’ may, presumably, remain a viable option.

The “right to be forgotten” is best viewed as a nuanced right to a fair first impression for searches based on a person’s name.

More importantly, the binary nature of the questions advanced by the Conseil d’État is both crude and inadequate. The “right to be forgotten” articulated in the Google Spain case is not aimed at unqualified protection; after all, the original content remains online and may be found using alternative search terms, not including the name of the person in question. Thus, the “right to be forgotten” is best viewed as a nuanced right to a fair first impression for searches based on a person’s name.

Given that the “right to be forgotten” is not unqualified, we do not need to pursue unqualified solutions in relation to jurisdiction. The real aim is an appropriate level of protection. In some cases – such as with sexual content involving minors – this clearly requires global delisting. In other cases – such as the accurate financial information at issue in the Google Spain case – more limited delisting will suffice. One size does not fit all.

The Conseil d’État also failed to acknowledge the international law aspects of the matter. The EU is subject to international law, which necessitates that the CJEU takes account of any limitations imposed by international law. So, what if anything does international law say that impacts the assessment in which the CJEU must now engage?

I am more than willing to admit that the relevant aspects of international law are messy and associated with both controversy and internal contradictions. But to gain an insight into some form of mainstream view of the applicable international law, we can draw upon the conclusions reached by the eminent group of experts who produced the Tallinn Manual 2.0.

If we adopt the conventional classification of jurisdiction (legislative, adjudicative, and enforcement), what we are dealing with here must clearly fall within so-called enforcement jurisdiction. As noted in the Tallinn Manual 2.0: “States generally do not possess enforcement authority outside their territory.” (Tallinn Manual 2.0, p. 52)

The most frequently cited description of sovereignty tells us that: “Sovereignty […] signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” (Island of Palmas) Where the EU determines what is delisted for Internet users in, for example, New Zealand, it is arguably interfering with New Zealand’s sovereignty.

To this, we may add that both the notion of international comity and international human rights law can be seen to speak against the crude and simplistic global delisting sought by the CNIL. It must also be remembered that, as the human rights of non-EU citizens would be affected by the type of orders sought by the CNIL, the CJEU must consider international human rights law (notably the International Covenant on Civil and Political Rights (ICCPR)) in addition to European human rights law.

As it was emphasised in the Tallinn Manual 2.0:

“Restrictions on the right to seek, receive, and impart information pursuant to Article 19 of the ICCPR must satisfy a tripartite test: they must be provided for by law under the clearest and most precise terms possible, foster a legitimate objective recognised by international law, and be necessary to achieve that objective.” (Tallinn Manual 2.0, p. 202)

All aspects of this tripartite test may pose a challenge for global delisting orders. It may be difficult to argue that providing the “right to be forgotten” in a situation such as that in Google Spain makes it necessary to delist search results in Fiji, in the Falkland Islands, or even in Finland.

Additionally, where the EU seeks to require a global internet intermediary to delist content globally, based on the violation of local law, other countries like North Korea, China, and Russia may also seek to make such orders.

Featured image credit: “Mac-459196” by 377035. CC0 Creative Commons via Pixabay . 

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Romance and reality: clinical science in liver transplant for alcoholism

Many view organ transplantation as one of the miracles of modern medicine: preserving a person’s life by providing a new liver, heart, lung, kidney, or other organ where the original vital organ has failed. One sees the transplant surgeon as the proverbial knight in shining armor riding a white horse and impaling the demons of death and disease on the end of his sharp-pointed lance. In this view, the patient receiving the organ graft is naturally worthy, good-hearted, and grateful for the new hope of a long life that is used to pass along the gift from the knight and his or her retainers—in our day called the transplant team. What wonderful contributions in modern medicine from organ donors and their families, the recipients, and the medical professionals themselves.

So far, all is well and good. Enter the alcoholic with severe liver failure due in part to drinking, a condition that will claim his or her life—with “end stage” liver disease for which there is no medical alternative for a cure. An alcoholic? Give an alcoholic a new liver when they have destroyed with drink the one Nature already provided? Graft a new liver in someone who will destroy the graft with their uncontrolled drinking? Some estimate that one in every two households has direct experience with an alcoholic relative, and very unpleasant experiences when they are drinking. Throw a liver away on someone like that? Surely this will tarnish the reputation—and perhaps the shining armor—of the knight.

Is it really the case of an idealized knight-provider and a mythological fiend in human form who can’t be trusted? Clinical science argues no. The knight does not merely aim a lance and spur the charger on to certain victory. In a field in which the need for donated organs overwhelms the supply of viable donor organs, the knight must decide where best to allocate the resource, not merely charge ahead.

The alcoholic with liver disease has a liver from birth that is genetically vulnerable in some way to the ravages of drink. Only about 15% of heavy drinkers develop alcoholic liver disease. The other 85% of heavy drinkers will never need a transplanted liver. Should the 15% die because of their genetic vulnerability to alcoholism—a treatable condition in which large numbers recover every year?

“Should the 15% die because of their genetic vulnerability to alcoholism—a treatable condition in which large numbers recover every year?”

And again, for reasons no one understands exactly, women are more vulnerable to alcoholic liver disease than men. They can acquire it by drinking more alcohol than is good for their liver but not enough for their brain to lose the ability to control alcohol use—the principal characteristic of alcoholism. Should women with alcoholic liver disease—but without alcoholism—die each year because of their gender and the genetics associated with it—confusing liver disease with brain alcohol addiction? Rather, clinical science brings its principles and its need for evidence, rather than surface biases, to bear in finding appropriate answers.

Over thirty years ago, a judge in the US state of Michigan held that alcoholism alone was not sufficient grounds for denying liver transplant. Transplant programs must provide rational criteria that can be fairly applied in deciding how to allocate a precious resource. The transplant surgeons and the internal medicine liver specialists then turned to a humble, itinerant psychiatrist to assist with this along the lines the Court guided. In a field full of biases, including for wishful cures, guidance came from the work of George Vaillant and his landmark studies in The Natural History of Alcoholism and its second Revisited edition.

There followed a clarification of the factors leading to sustained abstinence from alcohol that could be assessed in liver transplant candidates. As alcoholic candidates received life saving liver grafts, outcome studies across many centers demonstrated that alcoholic recipients fared as well or better than those receiving new livers for non-alcohol related conditions. Striking among them were the high rates of abstinence, again documented across centers. Findings such as this now drive pursuit of further scientific understanding.

Much research and discussion has since centered on transplant candidate evaluation and selection, as well as patient/candidate subgroups including those suffering from intractable alcoholic hepatitis. Long-term post-transplant outcomes among alcoholics receiving liver grafts have further informed candidate selection. Clinical observations have opened a door to basic research on the role of immunosuppressants found to decrease alcohol use in rodents.

Scientific findings such as these point to a miracle, not in the wishful sense of shining knights and storm-ridden demons, but rather of persistent searches for evidence by all who examine biases and pre-ordained conclusions in this multi-faceted topic.

Featured image credit: High magnification micrograph of a liver with cirrhosis. Trichrome stain. The most common cause of cirrhosis in the Western world is alcohol abuse – the cause of cirrhosis in this case. Image by nephron. CC BY-SA 3.0 via Wikimedia Commons. 

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