Digital Commons Network^™

Sunshine In Litigation Act Of 2009: Hearing Before The Subcomm. On Commercial And Administrative Law Of The H. Comm. On The Judiciary, 111th Cong., June 4, 2009 (Statement Of Sherman L. Cohn, Prof. Of Law, Geo. U. L. Center), Sherman L. Cohn

Testimony Before Congress

I urge that the issue before the Congress in the proposed “Sunshine in Litigation Act of 2009” is really one of social values and a choice to be made among various values and that that is a substantive matter rather than a mere matter of procedure. It is a choice among values that Congress, the legislative arm of the federal government, is charged with making and in this case should make.

What Went Wrong: Torture And The Office Of Legal Counsel In The Bush Administration: Hearing Before The Subcomm. On Administrative Oversight And The Courts Of The S. Comm. On The Judiciary, 111th Cong., May 13, 2009 (Statement Of David Luban, Prof. Of Law, Geo. U. L. Center), David Luban

Testimony Before Congress

The mission of the Office of Legal Counsel is to give the President advice to guide him in fulfilling an awesome constitutional obligation: to take care that the laws are faithfully executed. Faithful execution means interpreting the law without stretching it and without looking for loopholes. OLC's job is not to rubber-stamp administration policies, and it is not to provide legal cover for illegal actions.

Unfortunately, the interrogation memos fall far short of professional standards of candid advice and independent judgment. They involve a selective and in places deeply eccentric reading of the law. The memos cherry-pick sources of law …

Public Policy Platform On Flexible Work Arrangements

Published Reports

On May 13, 2009, Workplace Flexibility 2010 released a comprehensive set of policy solutions to expand Americans’ access to flexible work arrangements such as compressed workweeks, predictable schedules, and telecommuting.

Flexible Work Arrangements (FWAs) alter the time and/or place that work is conducted on a regular basis - in a manner that is as manageable and predictable as possible for both employees and employers. FWAs provide:

• Flexibility in the scheduling of hours worked, such as alternative work schedules (e.g., non-traditional start and end times, flex time, or compressed workweeks) and arrangements regarding overtime, predictable scheduling, and shift and break schedules; …

A Summary Of Data From Families And Work Institute’S National Study Of Employers (2008), Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

This memo presents data from the Families and Work Institute’s 2008 National Study of Employers describing the similarities in access to flexible work arrangements (“FWAs”) for employees of small and large employers. The 2008 National Study of Employers (“2008 Study”) provides a comparison of the availability of 12 types of FWAs to employees of small (50-99 employees) and large (over 1,000 employees) employers.

Medical Device Safety Act Of 2009: Hearing Before The Subcomm. On Health Of The H. Comm. On Energy And Commerce, 111th Cong., May 12, 2009 (Statement Of David C. Vladeck, Prof. Of Law, Geo. U. L. Center), David C. Vladeck

Testimony Before Congress

I start with a brief history of the Medical Device Amendments of 1976 and explain why that history demonstrates that Congress quite clearly intended to preserve state liability law, not wipe it away. I will then turn to the Court's ruling in Riegel and address why the Court's wooden, textual approach to the Amendments -- which ignores their purpose -- led the Court to conclude, wrongly, that Congress intended the Amendments to preempt state liability claims for devices approved by FDA under the pre-market approval process. Next, I discuss the impact Riegel has had in the courts, resulting in the …

Flexible Work Arrangements (Fwas): Possible Public Policy Approaches, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

There is a range of ways in which public policy can help workplace flexibility become a norm in the American workplace. Indeed, the various bills introduced in the 110th Congress to increase access to FWAs, one component of workplace flexibility, represent a wide range of public policy approaches.

This document categorizes and characterizes these public policy approaches to help clarify the options that might be pursued to increase access to FWAs.

Wyeth V. Levine And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court’s decision in Wyeth v. Levine sharply limited the availability of implied preemption as a defense in pharmaceutical cases. In this Analysis & Perspective, attorney Brian Wolfman discusses the decision and its implications for prescription drug litigation as well as litigation in other areas that are regulated by the federal government.

After Wyeth, Wolfman says, a defendant in a prescription drug case must demonstrate a ‘‘tight fit between the labeling change proposed by the manufacturer (and rejected by the FDA) and the labeling change that the plaintiff contends would have prevented her injuries.’’ Moreover, he says, …

Bills Introduced In The 111th Congress Regarding Flexible Work Arrangements, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

Flexible Work Arrangements (FWAs) alter the time and/or place that work is conducted on a regular basis -- in a manner that is as manageable and predictable as possible for both employees and employers. This document charts bills introduced in the 111th Congress regarding flexible work arrangements.

In The Matter Of Exemption To Prohibition On Circumvention Of Copyright Protection Systems For Access Control Technologies: Hearing Before The U.S. Copyright Office, Library Of Cong., May 6, 2009 (Statement Of Roger V. Skalbeck, Geo. U. L. Library, On Behalf Of The American Association Of Law Libraries, The Medical Library Association And The Special Libraries Association), Roger Skalbeck

Testimony Before Congress

The American Association of Law Libraries, the Medical Library Association, and the Special Libraries Association submit the following comments on exemptions that should be granted pursuant to 17 U.S.C. § 1201 (a)(1)(C).

Our request for an exemption is specifically aimed at literary and audiovisual works, usually commercially-produced, lawfully-acquired DVDs, when circumvention is used to make compilations of brief portions of the works for educational use by faculty members in a classroom setting.

Specifically, we request that the exemption granted to faculty in media and film studies programs after the 2006 rulemaking proceeding be broadened to faculty of law and the …

Friends Newsletter, May, 2009, Georgetown University Law Center

Edward Bennett Williams Law Library Friends Newsletter

No abstract provided.

Greening Historic Dc: Challenges And Opportunities To Incorporate Historic Preservation Into The District's Drive For Sustainable Development, Andrew Stein

Georgetown Law Historic Preservation Papers Series

This paper focuses primarily on the District of Columbia, a city with a robust past and a bold agenda for a sustainable future. However, it may not be obvious why historic preservation - a movement typically concerned with aesthetics - can play an integral role in a city's sustainability initiative. Therefore, this paper first sets forth the basic argument why historic preservation can be a tool to promote sustainable development. Part II examines the scientific data indicating that historic preservation is a green building practice. Next, Part III posits that investment in historic districts is an investment in sustainability. Then, …

Patent Reform Act Of 2009: Hearing Before The H. Comm. On The Judiciary, 111th Cong., April 30, 2009 (Statement Of Professor John R. Thomas, Geo. U. L. Center), John R. Thomas

Testimony Before Congress

Two types of patent damages reforms have been proposed before the 111th Congress. One would effectively reinforce the existing ability of accused infringers to challenge expert testimony as failing to meet prevailing standards of relevancy and reliability.The other would clarify current standards for patent damages law. In my opinion, both sorts of reforms would potentially play signficant roles in bringing greater predictability to patent damages law, and both deserve further consideration.

The Legislative History Of Fefcwa And Feptcea, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

No abstract provided.

Telework In The Federal Government: The Overview Memo, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Flexible Work Arrangements (FWAs) alter the time and/or place that employees work on a regular basis in a manner that is manageable and predictable for both employees and employers.1 Telework, also called telecommuting, refers to an FWA that enables an employee to work from an alternative place to the employer’s usual worksite, typically home or a satellite work center. Telework technically refers to work performed with the use of a telecommunications connection to the workplace (e.g., computer, telephone), but the term is also

Statements Illustrating The Legislative Intent Of These Laws, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Based on statements in the legislative history, these laws were meant to provide:

1. Overarching Benefits in the Current Economy
2. Benefits to Families
3. Benefits to Management
4. Equality for Women
5. Protection of the Environment

An Overview Of Early Laws Increasing Access To Flexible Scheduling And Reduced Hours In The Federal Workforce, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

The Federal Employees Flexible and Compressed Work Schedules Act (FEFCWA) authorizes, but does not require, agencies to offer alternative work schedules to employees. FEFCWA permits employees to designate non-traditional arrival and departure times, centered around core agency hours, and to experiment with four-day workweeks or other compressed schedules. Under the law, implementation and employee utilization of alternative work schedules depends on management support and leadership.

The Constitutionality Of Mandates To Purchase Health Insurance, Mark A. Hall

O'Neill Institute Papers

Health insurance mandates have been a component of many recent health care reform proposals. Because a federal requirement that individuals transfer money to a private party is unprecedented, a number of legal issues must be examined.

This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no Constitutional barriers for Congress to legislate a …

Health Insurance Exchanges: Legal Issues, Timothy S. Jost

O'Neill Institute Papers

Health insurance exchanges (HIE) are entities that organize the market for health insurance by connecting small businesses and individuals into larger pools that spread the risk for insurance companies, while facilitating the availability, choice and purchase of private health insurance for the uninsured. While there are legal issues that warrant consideration under a federal, state, or private exchange framework, those issues are not insurmountable barriers to implementation.

The Role Of Erisa Preemption In Health Reform: Opportunities And Limits, Peter D. Jacobson

O'Neill Institute Papers

The Employee Retirement Income Security Act (ERISA) is a federal law regulating the administration of private employer-sponsored benefits including health benefits (i.e., health insurance offered by an employer). In general, since the federal government has exercised its authority to preempt state regulation of the administration of private employer-sponsored health plans, states are blocked from enforcing laws interfering with ERISA.

As many states pursue health care reform experiments, ERISA preemption becomes relevant as a potential limit on the scope and type of reforms states are able to enact. The dominant trend in ERISA litigation has been to preempt state legislation and …

Executive Authority To Reform Health: Options And Limitations, Madhu Chugh

O'Neill Institute Papers

Presidential power has provoked increasingly vigorous debate since the turn of this century. In recent years, scholars and lawyers have been grappling with how Congress's dictates may limit the President's Commander-in-Chief power to detain enemy combatants at Guantanamo Bay, to fight wars abroad, and to conduct intelligence activities at home. But policymakers have not yet explored the many possibilities for invoking the President's "Take Care" power to change health care policy.

This paper explores the scope and limits of President Barack Obama's ability to invoke his executive authority to reform health care. Specifically, it identifies ways the Obama Administration can …

Insurance Discrimination On The Basis Of Health Status: An Overview Of Discrimination Practices, Federal Law And Federal Reform Options, Sara Rosenbaum

O'Neill Institute Papers

Actuarial underwriting, or discrimination based on an individual’s health status, is a business feature of the voluntary private insurance market. The term “discrimination” in this paper is not intended to convey the concept of unfair treatment, but rather how the insurance industry differentiates among individuals in designing and administering health insurance and employee health benefit products.

Discrimination can occur at the point of enrollment, coverage design, or decisions regarding scope of coverage. Several major federal laws aimed at regulating insurance discrimination based on health status focus at the point of enrollment. However, because of multiple exceptions and loopholes, these laws …

Privacy And Health Information Technology, Deven Mcgraw

O'Neill Institute Papers

The increased use of health information technology (health IT) is a common element of nearly every health reform proposal because it has the potential to decrease costs, improve health outcomes, coordinate care, and improve public health. However, it raises concerns about security and privacy of medical information.

This paper examines some of the “gaps” in privacy protections that arise out of the current federal health privacy standard, the Health Insurance Portability and Accountability (HIPAA) Privacy Rule, the main federal law which governs the use and disclosure of health information.

Additionally, it puts forth a range of possible solutions, accompanied by …

The Purchase Of Insurance Across State Lines In The Individual Insurance Market, Stephanie W. Kanwit

O'Neill Institute Papers

Proposals to allow the purchase of insurance across state lines (PASL) have gained some support in recent years. Health insurers have traditionally been allowed to sell a policy only within the state that approved and regulates that particular policy. PASL would allow insurers to sell a policy approved in one state to people residing in any state.

Any federal legislation to enact PASL in an individual insurance market would have to address two main legal considerations: 1) the McCarran-Ferguson Act, which allows the states to retain their regulatory authority over insurance, and 2) a constitutional prohibition against the commandeering of …

Constitutional Law And International Law: National Exceptionalism And The Democratic Deficit?, Michael Kirby

Philip A. Hart Memorial Lecture

On April 16 2009, Former Justice of the High Court of Australia, the Honorable Michael Kiryby delivered the Georgetown Law Center’s twenty-ninth annual Philip A. Hart Lecture: “ Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit?”

When he retired from the High Court of Australia on February 2, 2009, Michael Kirby was Australia’s longest serving judge.

He was first appointed in 1975 as a Deputy President of the Australian Conciliation & Arbitration Commission. Soon after, he was seconded as inaugural Chairman of the Australian Law Reform Commission (1975-84). Later, he was appointed a judge of the Federal …

Consumer Debt - Are Credit Cards Bankrupting Americans: Hearing Before The Subcomm. On Commercial & Administrative Law Of The H. Comm. On The Judiciary, 111th Cong., April 2, 2009 (Statement Of Associate Professor Adam J. Levitin, Geo. U. L. Center), Adam J. Levitin

Testimony Before Congress

I urge the Congress to take up a comprehensive program of credit card reform legislation. While repealing parts of the BAPCPA is a key element to creating a fair and sustainable card lending industry, that alone will not eliminate predatory lending models. Instead, I strongly urge the Congress to consider mandating term standardization and price structure simplification for credit cards.

Conflicts Between Dispute Settlement Mechanisms In Regional Trade Agreements And The Wto — What Should Wto Do?, Jennifer A. Hillman

Georgetown Law Faculty Publications and Other Works

It was a tremendous pleasure to participate in a symposium that honored one of the giants of the World Trade Organization's (WTO) Appellate Body—Professor Yasuhei Taniguchi. Professor Taniguchi served as a distinguished member of the Appellate Body from 2000 to 2007, during which time he served on the division for twenty-one appeals, many of them addressing landmark issues. In tribute to him, this article focuses on an issue that was a key element in the last dispute on which Professor Taniguchi served as member of the Appellate Body. This dispute concerned Brazil's restrictions on imports of retreaded tires and raised …

The Perilous Dialogue, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in …

Abusive Credit Card Practices And Bankruptcy: Hearing Before The S. Comm. On The Judiciary, 111th Cong., March 24, 2009 (Statement Of Associate Professor Adam J. Levitin, Geo. U. L. Center), Adam J. Levitin

Testimony Before Congress

The Marquette decision created a regulatory arbitrage possibility that set off a regulatory race to the bottom. Congress should act to close this loophole. There is a reasonable debate to be had on usury regulations, but that is one that should be held in legislatures, not determined by the Supreme Court's interpretation of a hoary statute. A 1970s interpretation of an 1863 law should not be what determines 21st century consumer credit regulation. Congress should permit the states, the laboratories of democracy, to go further than S.257 if they wish in regulating high-interest-rate consumer credit. This essential consumer protection power …

Bank Supervision And Regulation: Hearing Before The S. Comm. On Banking, Housing And Urban Affairs, 111th Cong., Mar. 19, 2009 (Statement Of Daniel K. Tarullo, Geo. U. L. Center), Daniel K. Tarullo

Testimony Before Congress

No abstract provided.

Science, Politics, And Values: The Politicization Of Professional Practice Guidelines, Lawrence O. Gostin, John D. Kraemer

O'Neill Institute Papers

The Connecticut Attorney General’s recent allegations that the Infectious Disease Society of America violated antitrust law through its treatment guidelines for Lyme disease were neither based in sound science or appropriate legal judgment. Strong scientific evidence favors IDSA’s position that chronic infection with the etiologic agent of Lyme disease does not occur in the absence of objective signs of ongoing infection and that long-term antibiotic use to treat dubious infection, recommended in the quasi-scientific guidelines put forth by the International Lyme and Associated Diseases Society (ILADS), are of no benefit. In siding with ILADS and other chronic Lyme disease advocates, …