Law Commons^™

Solicitors General Panel On The Legacy Of The Rehnquist Court, Seth P. Waxman, Walter E. Dellinger Iii, Maureen Mahoney, Theodore Olson, Drew S. Days Iii

Georgetown Law Faculty Publications and Other Works

All of us who are speaking probably share the same giddy feeling in front of a microphone with no red light. For years, my daughter told people that the greatest threat to Western civilization was her father at a podium without a red light. Before becoming Solicitor General, I spent my career as a trial lawyer, arguing only a few appeals. I found this red light tradition a little peculiar. More often than not, timers and lights in courts of appeals are viewed as advisory at best. I've had arguments where ten minutes were allocated per side, and yet argument …

Johanns V. Livestock Marketing Ass'n: Demise Of First Amendment Protection Against Compelled Commercial Speech, Edward J. Schoen, J. S. Falchek

Rohrer College of Business Faculty Scholarship

No abstract provided.

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Congress, Controlled Substances, And Physician-Assisted Suicide: Elephants In Mouseholes, George J. Annas

Faculty Scholarship

The U.S. Supreme Court's decision in Gonzales v. Oregon to reject the U.S. attorney general's authority to prohibit physicians in Oregon from prescribing Schedule II drugs for their terminally ill patients to commit suicide can seem paradoxical and confusing. How is it that California cannot permit the patients of physicians who recommend marijuana, a Schedule I drug, to possess legally and use marijuana that they may need to survive, but Oregon can legally permit physicians to prescribe Schedule II drugs and patients to possess and use such drugs to end their lives?

Dna Testing, Banking, And Genetic Privacy, George J. Annas

Faculty Scholarship

"Who am I?” has always been a fundamental philosophical question that may require decades of reflection to answer. With the advent of DNA analysis, there is a growing public impression that the answer may be found in our genes. Various Internet sites offer descriptions of our ancestral history on the basis of our DNA, as well as testing for specific “disease genes” or general profiles that are used to recommend lifestyle changes, such as foods to be eaten or avoided. Researchers have even suggested that although the scientific evidence is speculative and at best probabilistic, many people will want to …

The Patient's Right To Safety: Improving The Quality Of Care Through Litigation Against Hospitals, George J. Annas

Faculty Scholarship

It is the consensus of experts in the patient-safety field that little has changed to improve the safety of hospital care since the Institute of Medicine's 1999 report, To Err Is Human. The report noted that in order to be successful, “safety must be an explicit organizational goal that is demonstrated by clear organizational leadership. . . . This process begins when boards of directors demonstrate their commitment to this objective by regular, close oversight of the safety of the institutions they shepherd.” Leape and Berwick agree, noting that safety cannot become an institutional priority “without more sustained and …

Toward Healing And Restoration For All: Reframing Medical Malpractice Reform, Jonathan Todres

Faculty Publications By Year

The medical malpractice liability system is blamed for everything from the high cost of health care to quality assurance issues. This Article suggests that that one of the problems with the current approach to medical malpractice is that legal remedies for medical error are not viewed as part of the continuum of care. Thus, a new model - driven by the principle of care and the goal of healing - is needed to address medical errors more effectively. Building from these core principles of care and healing, the author develops a new healing-centered framework which provides a better assessment of …

Commercializing Open Source Software: Do Property Rights Still Matter?, Ronald J. Mann

Faculty Scholarship

For several years now, open source software products have been gaining prominence and market share. Yet the products themselves are not as provocative as the way in which they are developed and distributed. Two related features of the open source model are distinctive: the use of collaborative development structures that extend beyond the boundaries of a single firm, and the lack of reliance on intellectual property ("IP") rights as a means of appropriating the value of the underlying technologies. Firm-level control of intellectual property is replaced by a complex set of relations, both informal and sometimes contractual, among strategic partners …

Edwin S. Cohen, Michael J. Graetz

Faculty Scholarship

This is not the first time I have spoken to honor Edwin S. Cohen. I spoke at two of his retirements – at least – and in the Rotunda at both his 75th and 80th birthday celebrations. Each time, and on many other occasions over the years when I have spoken about tax law or policy in his presence, I would always steal a glance at Eddie, looking for that twinkle in his eyes, hoping to bring a smile to his face, or even an outright giggle. Today, I know I will still look, as I will for years to …

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Faculty Scholarship

Forever, it seems, the power to shape public morality has been seen as central to American governance. As one of the morality tradition's chief promoters, the Supreme Court itself has regularly endorsed and applauded government's police power to regulate the public's morality along with the public's health and welfare.

How, then, can we make sense of the Court's declaration in Lawrence v. Texas that the state's interest in preserving or promoting a particular morality among its constituents did not amount even to a legitimate interest to justify a Texas law criminalizing sexual intimacy between consenting adults? Has the Court unforeseeably …

Income Tax Discrimination And The Political And Economic Integration Of Europe, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant EU income tax legislation, because no EU political institution has the power to enact such legislation without unanimous consent from the member states. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of …

Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens

Faculty Scholarship

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational – they are a …

Adolescence And The Regulation Of Youth Crime, Elizabeth S. Scott

Faculty Scholarship

I am delighted to be a part of this Symposium on Law and Adolescence. My talk today is about adolescent development and juvenile justice policy. Specifically, I will focus on why a legal regime that is grounded in scientific knowledge about adolescence and the role of criminal activity during this developmental period is better for young offenders and for society than the contemporary policy, which often pays little attention to differences between adolescents and adults.

My talk is based on a book on juvenile justice policy I am currently writing with Larry Steinberg, a developmental psychologist who is a leading …

Tourism In Antarctica: History, Current Challenges And Proposals For Regulation, Juan Y. Harcha

LLM Theses and Essays

Tourism in the Antarctic has experienced rapid growth throughout the last fifteen years with over 30,000 people visiting the white continent during the 2005 - 2006 season. Such expansion offers a host of new activities for visitors to explore this immense wilderness, yet it brings considerable unease over the future of Antarctica. As of 1961, issues concerning the white continent have been dealt with under the Antarctic Treaty System, which has provided the forum for the discussion of numerous measures. This paper looks into the history of tourism, analyzes the main challenges such industry poses, and attempts an assessment of …

"Contracting" For Credit, Ronald J. Mann

Faculty Scholarship

On a recent day, I used my credit cards in connection with a number of minor transactions. I made eight purchases, and I paid two credit card bills. I also discarded (without opening) three solicitations for new cards, balance transfer programs, or other similar offers to extend credit via a credit card. Statistics suggest that I am not atypical. U.S. consumers last year used credit cards in about 100 purchasing transactions per capita, with an average value of about $70. At the end of the year, Americans owed nearly $500 billion dollars, in the range of $1,800 for every man, …

Less Is Better: Justice Stevens And The Narrowed Death Penalty, James S. Liebman, Lawrence C. Marshall

Faculty Scholarship

In a recent speech to the American Bar Association, Justice John Paul Stevens "issued an unusually stinging criticism of capital punishment." Although he "stopped short of calling for an end to the death penalty," Justice Stevens catalogued a number of its "'serious flaws,'" including several procedures that the full Court has reviewed and upheld over his dissent – selecting capital jurors in a manner that excludes those with qualms about the death penalty, permitting elected state judges to second-guess jurors when they decline to impose the death penalty, permitting states to premise death verdicts on "victim impact statements," tolerating sub-par …

The Politics Of Same-Sex Marriage Politics, Katherine M. Franke

Faculty Scholarship

In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and …

Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China's Peasants. The book exposed official malfeasance on Zhang's watch and the resultant peasant hardships. Zhang demanded an apology from the book's authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In 2000, Song Dianwen, a peasant, sued …

Clark's Treatise On Corporate Law: Filling Manning's Empty Towers, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Almost 45 years ago, in an elegantly depressive account of the then current state of corporate law scholarship, Bayless Manning announced the death of corporation law "as a field of intellectual effort." Manning left us with an affecting image of a once grand field long past its prime, rigid with formalism and empty of content:

When American law ceased to take the "corporation" seriously, the entire body of law that had been built upon that intellectual construct slowly perforated and rotted away. We have nothing left but our great empty corporate statutes towering skyscrapers of rusted girders, internally welded together …

The Paradox Of The Drug Elimination Program In New York City Public Housing, Jeffrey A. Fagan, Garth Davies, Jan Holland

Faculty Scholarship

In this study, we examine the effects of the DEP intervention at three levels of complementary theoretical and practical relevance: the public housing development itself, the neighborhood in which public housing is situated, and the police precinct where the tract is located. From surveys of residents, observations of program activities, and analyses of NYCHA's program records, we compiled detailed information on the components of DEP and the reactions of public housing residents to each type of intervention. We then analyzed panel data from 1985-1996 to estimate the effects of DEP on crime rates in and around the city's public housing …

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use …

Learning To Learn: Undoing The Gordian Knot Of Development Today, Charles F. Sabel, Sanjay G. Reddy

Faculty Scholarship

The deep flaw of existing approaches to development is their dirigisme: the assumption, common to nearly all development theory, that there is an expert agent that already sees the future. A common thread connects the emergent alternatives to development orthodoxy: the enhancement of the conditions of individual and collective learning. This approach to development highlights the existence of unresolved problems and the necessity of problem solving in every sphere. The enhancement of the conditions of learning can be the key to improving performance, resolving deadlocks, and overcoming blockages, at every level at which common dilemmas and collective problem solving occur …

Chapter 3: Open Source Software: Free Provision Of Complex Public Goods, James Bessen

Faculty Scholarship

Open source software, developed by volunteers, appears counter to the conventional wisdom that private provision of public goods is socially more efficient. But complexity makes a difference. Under standard models, development contracts for specialized software may be difficult to write and ownership rights do not necessarily elicit socially optimal effort. I consider three mechanisms that improve the likelihood that firms can obtain the software they need: pre-packaged software, Application Program Interfaces (APIs) and Free/Open Source software (FOSS). I show that with complex software, some firms will choose to participate in FOSS over both "make or buy" and this increases social …

Estimates Of Patent Rents From Firm Market Value, James Bessen

Faculty Scholarship

The value of patent rents is an important quantity for policy analysis. However, estimates in the literature based on patent renewals might be understated. Market value regressions could provide validation, but they have not had clear theoretical foundations for estimating patent rents. I develop a simple model to make upper bound estimates of patent rents using regressions on Tobin's Q. I test this on a sample of US firms and find it robust to a variety of considerations. My estimates correspond well with estimates based on patentee behavior outside the pharmaceutical industry, but renewal estimates might be understated for pharmaceuticals.

'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain

Faculty Scholarship

Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …

The Constitutional Law Of Presidential Transitions, Jack M. Beermann

Faculty Scholarship

Presidential transition periods are times of uncertainty and contradiction. The outgoing president retains all the formal legal powers of the presidency, yet his last electoral success is four years removed and his political capital is at low ebb. Further complicating the matter is that the transition agendas of the two presidents are unlikely to be aligned. Even if both presidents are from the same political party, their goals in the transition period may be widely disparate. The outgoing president will be concerned with preserving his legacy. The incoming president, on the other hand, will be focused on beginning her own …

Patent Buy-Outs For Global Disease Innovations For Low- And Middle-Income Countries, Kevin Outterson

Faculty Scholarship

Drug prices are uniquely susceptible to radical price reductions through generic competition. Patented pharmaceuticals may be priced at more than 30 times the marginal cost of production; the excess is the patent rent collected by the drug company while the patent and exclusive marketing periods remain. Patent rents are significant. AIDS drugs which sell for US$10,000 per person per year in the US are sold generically for less than US$200. If patented drugs could be sold at the marginal cost of production, cost effective treatments would become even more attractive, and other interventions would become affordable.

This Article proposes marginal …

Private Law And State-Making In The Age Of Globalization, Daniela Caruso

Faculty Scholarship

The rise of post-national entities, such as the institutions of the European Union and of free-trade regimes, bears no obvious relation to the traditional pillars of western private law (mostly contracts, torts, and property doctrines). The claim of this article is that the global diffusion of private law discourse contributes significantly to the emergence of new centers of authority in the global arena. The article tests the impact of private law arguments in three contexts - the growing legitimacy of regional human rights adjudication, the consolidation of the institutions of the European Union, and the higher binding force of international …

A Restatement (Third) Of Intentional Torts?, Kenneth Simons

Faculty Scholarship

Some intentional tort doctrines have developed in intriguing ways since the Restatement Second was published, and other doctrines remain contentious or obscure. For example, disagreement persists about whether the tort of battery requires merely the (single) intent to make a nonconsensual contact, or the (dual) intent both (1) to contact and (2) either to harm or to offend. The single intent view is much more plausible; the dual intent view cannot make much sense of the liability of well-intentioned doctors for battery if they exceed the patient's consent, or the liability of pranksters, or the well-accepted doctrine of apparent consent. …

Intelligent Design And The First Amendment: A Response, Jay D. Wexler

Faculty Scholarship

In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my …