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Full-Text Articles in Law

Fixing The Flaws In The Federal Vaccine Injury Compensation Program, Peter H. Meyers Jan 2011

Fixing The Flaws In The Federal Vaccine Injury Compensation Program, Peter H. Meyers

GW Law Faculty Publications & Other Works

The Federal Vaccine Injury Compensation Program was a pioneering no-fault federal tort reform innovation when it was created two decades ago, but it is no longer the fast, generous, and less adversarial program that Congress originally created or that the Supreme Court recently described in Bruesewitz v. Wyeth. This article describes the serious problems that exist in the Vaccine Injury Compensation Program today, and proposes several legislative and other suggestions to fix these problems. Important lessons on how to improve the Vaccine Injury Compensation Program can be learned from several other recent federal compensation programs, including the Smallpox Compensation Program ...


Problems In Environmental Protection And Human Rights: A Human Right To The Environment, Dinah L. Shelton Jan 2011

Problems In Environmental Protection And Human Rights: A Human Right To The Environment, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The assertion of a human right to a healthy environment has persisted over the last 40 years. Here we examine the international guarantees and national guarantees that have developed. We also look at moves toward a Declaration on Human Rights and the Environment.


Problems In Climate Change And Human Rights, Dinah L. Shelton Jan 2011

Problems In Climate Change And Human Rights, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The link between adverse impacts of climate change and human rights was pushed to the fore recently by a 2005 petition by Sheila Watt-Cloutier on behalf of the Inuit people of the Artic regions to the Inter-American Commission on Human Rights. Human Rights challenges to harmful climate change activities and impacts have also been launched in a number of national courts. In Nigeria and Australia substantive and procedural rights have been put ...


Legal Impediments To The Diffusion Of Telemedicine, Diane E. Hoffmann, Virginia Rowthorn Jan 2011

Legal Impediments To The Diffusion Of Telemedicine, Diane E. Hoffmann, Virginia Rowthorn

Faculty Scholarship

No abstract provided.


Shall We Overcome? "Post-Racialism" And Inclusion In The 21st Century, Sheryll Cashin Jan 2011

Shall We Overcome? "Post-Racialism" And Inclusion In The 21st Century, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

The subject of "post-racialism" has been rather topical since Barack Obama was elected President. I greatly appreciate this opportunity to reflect on the extent to which Americans have, or have not, transcended race. The topic interests me tremendously because for many years I have been an advocate for race and class integration, which I addressed at length in my book The Failures of Integration. In The Failures, my main argument for pursuing meaningful integration is that a nation premised on race and class separation renders the "American Dream" of residential choice leading to upward mobility impossibly expensive and out of ...


Regulating The Plea-Bargaining Market: From Caveat Emptor To Consumer Protection, Stephanos Bibas Jan 2011

Regulating The Plea-Bargaining Market: From Caveat Emptor To Consumer Protection, Stephanos Bibas

Faculty Scholarship at Penn Law

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not ...


A Medical Malpractice Model For Developing Countries?, Nathan Cortez Jan 2011

A Medical Malpractice Model For Developing Countries?, Nathan Cortez

Faculty Scholarship

This Article, written for the symposium "Reforming Medical Liability: Global Perspectives," evaluates the unique plight of developing countries in crafting medical liability regimes. Many developing countries struggle to maintain workable systems for adjudicating physician negligence. This is due to a variety of factors, such as widespread poverty, more pressing public health priorities that demand attention, a scarcity of physicians, immature health care systems, large informal health sectors, regulatory deficits, and weak civil societies, among others. Patients in these countries are also less able than their counterparts in well-developed countries to evaluate and challenge the care they receive and thus serve ...


Law As Asymmetric Information: Theory, Application, And Results In The Context Of Foreign Direct Investment In Real Estate, Patrick J. Glen Jan 2011

Law As Asymmetric Information: Theory, Application, And Results In The Context Of Foreign Direct Investment In Real Estate, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

In his seminal 1970 article on lemon markets, George Akerlof posited the possibility of market failure in the presence of asymmetric information regarding a good’s value. In the intervening four decades, the importance of accurate valuation information has grown as transnational trade has boomed. The aim of the instant article is to assess the potential impact on transnational trade of asymmetric information regarding the legal attributes of a given good. Inaccurate or asymmetric information regarding relevant legal attributes may give rise to the same problem of market failure that Akerlof initially posited. If buyers are unsure of the ownership ...


Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce Jan 2011

Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce

Faculty Scholarship

Many lawyers lie to their clients by saying, “Everything you tell me is confidential” despite the existence of some rules that require lawyers to disclose client confidences and others that permit lawyers to disclose confidences to protect themselves or collect fees. In an effort to encourage clients to speak honestly, a number of commentators urge lawyers to provide either a general or specific notice of the exceptions to confidentiality. This Article offers a different approach. It seeks to promote an honest and open dialogue between lawyer and client that will create a relationship of mutual trust and will make it ...


Socio-Economic Activity And Water Use In Australia's Tropical Rivers: A Case Study In The Mitchell And Daly River Catchments: Final Report For The Tropical Rivers And Coastal Knowledge Research Consortium, Natalie Stoeckl, Michelle Esparon, Owen Stanley, Marina Farr, Aurelie Delisle, Zulgerel Altai Jan 2011

Socio-Economic Activity And Water Use In Australia's Tropical Rivers: A Case Study In The Mitchell And Daly River Catchments: Final Report For The Tropical Rivers And Coastal Knowledge Research Consortium, Natalie Stoeckl, Michelle Esparon, Owen Stanley, Marina Farr, Aurelie Delisle, Zulgerel Altai

Faculty of Law, Humanities and the Arts - Papers

Tropical Rivers and Coastal Knowledge (TRaCK) is a research hub that was established in 2007 under the Commonwealth Environment Research Facilities Program. Its aim is to provide the science and other knowledge that governments, communities and industries need for the sustainable use and management of Australia’s tropical rivers and estuaries.


The Program Era: Review By Catherine Cole, Catherine Cole Jan 2011

The Program Era: Review By Catherine Cole, Catherine Cole

Faculty of Law, Humanities and the Arts - Papers

Book review of:

Mark McGurl The Program Era: Postwar Fiction and the Rise of Creative Writing Harvard University Press, Cambridge, MA 2009 ISBN 9780674062092 Pb 466pp AUD24.95 ISBN 9780674033191 Hb 466pp AUD64.99


The Model Rules Of Professional Conduct Through The Lens Of The Proverbs, Scott E. Thompson Jan 2011

The Model Rules Of Professional Conduct Through The Lens Of The Proverbs, Scott E. Thompson

Faculty Publications and Presentations

No abstract provided.


Guardianship And Its Alternatives: A Handbook On Maryland Law, Virginia Rowthorn, Ellen A. Callegary Jan 2011

Guardianship And Its Alternatives: A Handbook On Maryland Law, Virginia Rowthorn, Ellen A. Callegary

Faculty Scholarship

No abstract provided.


China's "Green Leap Forward" Toward Global Environmental Leadership, Robert V. Percival Jan 2011

China's "Green Leap Forward" Toward Global Environmental Leadership, Robert V. Percival

Faculty Scholarship

This article argues that China may be on the verge of a “Green Leap Forward” that could make it a global environmental leader. This article argues that two principal forces have contributed to this development. First, Chinese officials now realize that a global shift away from fossil fuels will create enormous business opportunities on a global scale. Chinese companies are now making enormous strides in the development of green technology, such as solar power, wind energy, and electric cars, with the active assistance of the Chinese government. Second, realizing that climate change severely threatens China, and stung by the criticism ...


The Truth About Regulation In America, Rena I. Steinzor Jan 2011

The Truth About Regulation In America, Rena I. Steinzor

Faculty Scholarship

The special interests leading the accelerating crusade against regulation have re-ignited a potent coalition of industry lobbyists, traditional conservatives, and grassroots Tea Party activists. The politicians speak in generic terms for public consumption: “the nation is broke,” “big government is bad,” “regulation costs trillions.” Behind the scenes, industry lobbyists target for repeal dozens of regulations that are designed to control pollution, ensure drug, product, and food safety, and eliminate workplace hazards. In an effort to bring light and air to an often misleading and always opportunistic national debate, this essay presents five truths about the state of health, safety, and ...


Drug Policy In Context: Rhetoric And Practice In The United States And The United Kingdom, Richard C. Boldt Jan 2011

Drug Policy In Context: Rhetoric And Practice In The United States And The United Kingdom, Richard C. Boldt

Faculty Scholarship

The history of narcotics use and drug control in the U.S. before passage of the Harrison Act in 1914 is similar in important respects to that in the U.K. during the same period. Although the two countries’ paths diverged significantly over the ensuing decades, there has been a convergence of sorts in recent years. In the United States, the trend lines have moved from an active “war on drugs” in which criminal enforcement and punishment have been the primary rhetorical and practical instruments of policy to an evolving approach, at least at the federal level, characterized by a ...


Medical Alert: Alarming Challenges Facing Medical Technology Innovation, Lawrence M. Sung Jan 2011

Medical Alert: Alarming Challenges Facing Medical Technology Innovation, Lawrence M. Sung

Faculty Scholarship

No abstract provided.


Money And Rights, Deborah Hellman Jan 2011

Money And Rights, Deborah Hellman

Faculty Scholarship

This chapter looks at when constitutionally protected rights are interpreted by courts to include a concomitant right to spend money to effectuate the underlying right and when they are not. It concludes that there are two strands in our constitutional law: the Integral Strand, in which a right includes the right to spend money and the Blocked Strand, in which it does not.


Three Theories Of Copyright In Ratings, James Grimmelmann Jan 2011

Three Theories Of Copyright In Ratings, James Grimmelmann

Faculty Scholarship

Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright’s usual balance between incentives and access becomes indeterminate when ...


The Properties Of Instability: Markets, Predation, Racialized Geography, And Property Law, Audrey Mcfarlane Jan 2011

The Properties Of Instability: Markets, Predation, Racialized Geography, And Property Law, Audrey Mcfarlane

All Faculty Scholarship

A central, symbolic image supporting property ownership is the image of stability. This symbol motivates most because it allows for settled expectations, promotes investment, and fulfills a psychological need for predictability. Despite the symbolic image, property is home to principles that promote instability, albeit a stable instability. This Article considers an overlooked but fundamental issue: the recurring instability experienced by minority property owners in ownership of their homes. This is not an instability one might attribute solely to insufficient financial resources to retain ownership, but instead reflects an ongoing pattern, exemplified throughout the twentieth century, of purposeful involuntary divestment of ...


Selective Bibliography Relating To Law Students And Lawyers With Disabilities, Adeen Postar Jan 2011

Selective Bibliography Relating To Law Students And Lawyers With Disabilities, Adeen Postar

All Faculty Scholarship

No abstract provided.


The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr. Jan 2011

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In ...


The Sacrifice Of The New Originalism, Thomas Colby Jan 2011

The Sacrifice Of The New Originalism, Thomas Colby

GW Law Faculty Publications & Other Works

This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a theory that ...


The Inherent Tension Between Value Creation And Value Claiming During Bargaining Interactions, Charles B. Craver Jan 2011

The Inherent Tension Between Value Creation And Value Claiming During Bargaining Interactions, Charles B. Craver

GW Law Faculty Publications & Other Works

When individuals negotiate, they must initially use the Information Stage to create value by discussing the different issues to be addressed and by exploring the interests underlying those items. They must be willing to disclose their basic interests if progress is to be made, but they are usually not entirely candid for strategic purposes. They may over-state the degree to which they want items they think the other side values and under-state the degree to which they want items they believe the other side does not value. They then move into the Distributive Stage to decide how their joint surplus ...


The Impact Of Labor Unions On Worker Rights And On Other Social Movements, Charles B. Craver Jan 2011

The Impact Of Labor Unions On Worker Rights And On Other Social Movements, Charles B. Craver

GW Law Faculty Publications & Other Works

Labor unions have been in existence for over two hundred years, initially as craft organizations, and more recently as industrial and service organizations. During their existence they have significantly enhanced the wages and fringe benefits of represented workers through the collective bargaining process, and indirectly affected the wages and benefits enjoyed by nonunion employees whose employers provided them with such benefits to preclude their unionization. Unions have also provided members with job security through just cause disciplinary limitations and grievance-arbitration procedures. Over the past sixty years, many social movements have employed union tactics to advance other critical issues such as ...


Rhetoric Versus Reality In Arbitration Jurisprudence: How The Supreme Court Flaunts And Flunks Contracts (And Why Contracts Teachers Need Not Teach The Cases), Lawrence A. Cunningham Jan 2011

Rhetoric Versus Reality In Arbitration Jurisprudence: How The Supreme Court Flaunts And Flunks Contracts (And Why Contracts Teachers Need Not Teach The Cases), Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Supreme Court rhetoric about the role of contracts and contract law in arbitration jurisprudence differs sharply from the reality of its applications. In the name of contracts, the Court administers a self-declared national policy favoring arbitration, a policy directly benefiting the judicial branch of government. This often puts the Court’s preferences ahead of those of contracting parties while declaring its mission as solely to enforce contracts in accordance with contract law. The Court thus cloaks in the rhetoric of volition a policy in tension with constitutionally-pedigreed access to justice and venerable principles of federalism.

This Article documents the rhetoric-reality ...


The Influence Of Law And Economics On Law And Accounting: Two Steps Forward, One Step Back, Lawrence A. Cunningham Jan 2011

The Influence Of Law And Economics On Law And Accounting: Two Steps Forward, One Step Back, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Theory can have profound effects on practice, some intended and desirable, others unintended and undesirable. That's the story of the influence the field of law and economics has had on the domain of law and accounting. That influence comes primarily from agency theory and modern finance theory, specifically through the efficient capital market hypothesis and capital asset pricing model. Those theories have forged considerable change in federal securities regulation, accounting standard setting, state corporation law, and financial auditing. Affected areas include the nature of disclosure, the measure of financial concepts, the limits of shareholder protection, and the scope of ...


The Ftc, Ip, And Ssos: Government Hold-Up Replacing Private Coordination, F. Scott Kieff, Richard A. Epstein, Daniel F. Spulber Jan 2011

The Ftc, Ip, And Ssos: Government Hold-Up Replacing Private Coordination, F. Scott Kieff, Richard A. Epstein, Daniel F. Spulber

GW Law Faculty Publications & Other Works

In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream ...


Child Citizenship And Agency As Shaped By Legal Obligations, Suzanne H. Jackson Jan 2011

Child Citizenship And Agency As Shaped By Legal Obligations, Suzanne H. Jackson

GW Law Faculty Publications & Other Works

This article maintains that the legal recognition of obligations for children facilitates their recognition as citizens and agents when such obligations are understood from contextual and relational perspectives. Drawing primarily upon sources from Canada and the United States, the article advances this claim through a study of three separate settings. Part I examines the “child as student” and studies children’s obligations within schools. Part II considers the “street child” and the obligations and challenges children encounter when they live away from their families and communities. Part III contemplates the “child as bargainer” and focuses on obligations children assume when ...


The Rise And Fall Of Comparative Constitutional Law In The Postwar Era, David Fontana Jan 2011

The Rise And Fall Of Comparative Constitutional Law In The Postwar Era, David Fontana

GW Law Faculty Publications & Other Works

In the first few decades after World War II, comparative constitutional law rose to a prominent position in American law schools, only to disappear in many ways in the years after the Warren Court in part because of the Court’s decisions. During the years after World War II, Justices of the Supreme Court (from William Douglas to Felix Frankfurter to Earl Warren) and deans of major American law schools (like Harvard Law School Dean and later Nixon Solicitor General Erwin Griswold) traveled the country and the world encouraging everyone to examine the constitutional law of other countries. Law reviews ...