Law Commons^™

Aducanumab, Accelerated Approvals & The Agency: Why The Fda Needs Structural Reform, Matthew Herder

Articles, Book Chapters, & Popular Press

The US Food and Drug Administration’s controversial decision to grant accelerated approval to aducanumab (Aduhelm), a therapy for Alzheimer’s disease, has motivated multiple policy reforms. Drawing upon a case series of other drugs granted accelerated approval and interviews of senior FDA officials, I argue that reform should be informed but not defined by aducanumab. Rather, structural reforms are needed to reshape FDA’s core priorities and restore the regulatory system’s commitment to scientific rigor.

Lists In Legal Drafting: How Brain Science Can Help Student Drafters Produce Documents That Are Easier To Read And Comprehend, Karin Mika

Law Faculty Articles and Essays

Lists play an important role in legal drafting of every type. A list helps the reader break down larger pieces of information, and a well-constructed list's visuals can aid in comprehension. A good list can also head off future legal disputes by making it easier for all parties to read and understand its contents. But a list, in and of itself, is not beneficial unless it is organized in such a way that the brain can easily group like items. By understanding the basics of how the brain processes information, the legal writer can better understand how to group pieces …

Legal Hurdles And Pathways: The Evolution (Progress?) Of Climate Change Adjudication In Canada, Camille Cameron, Riley Weyman, Claire Nicholson

Articles, Book Chapters, & Popular Press

Citizens, civil society, and environmental organisations throughout the world are increasingly turning to courts to find solutions to the perils of climate change. In July 2023, the United Nations Environment Programme (“UNEP”) reported that as of November 2022, there were 2,180 climate change litigation cases underway throughout the world, that this number is 2.5 times higher than it was five years ago, and that the number of jurisdictions involved has grown from 24 in 2017, to 39 in 2020, to 65 in 2023. The authors of this report describe climate litigation as “a frontier solution to change the dynamics of …

North American Energy In The Crossfire, Guillermo J. Garcia Sanchez, James W. Coleman

Faculty Scholarship

North America is the beating heart of global energy markets un-dergoing a terrible energy crisis that threatens to upend both the economy and global security. The clearest path out of this global crisis is increasing energy supplies from North America, which can restore energy security and drive a transition to cleaner energy sources. The U.S., Mexico, and Canada have abundant and varied resources to surmount this challenge but are in dire need of stronger cooperation across borders, and between private and public actors to achieve this goal. This Article shows how energy law changes in the U.S. and Mexico present …

Virtual Energy, Joel B. Eisen, Felix Mormann, Heather E. Payne

Faculty Scholarship

From employment to education, many areas of our daily lives have gone virtual, including the virtual workplace and virtual classes. By comparison, the way we generate, deliver, and consume electricity is an anachronism. And the electric industry’s outdated business model and regulatory framework are failing. For the last century-and-a-half, we have relied on ever larger power plants to generate the electricity we consume, often hundreds of miles away from the point of production. But the outsized carbon footprint of these power plants and the need to transmit their output over long distances threaten the electric grid’s reliability, affordability, and long-term …

Media + Vigilante Violence: The Formula For American Atrocity, Tiffany D. Atkins

Law Faculty Scholarly Articles

This Article provides an overview of the international and domestic responses to media-fueled violence and demonstrates how both legal systems have failed to provide meaningful protections for Black Americans from vigilante violence and atrocity. Part I explores the history of media as a propaganda tool against underrepresented groups, detailing how it has promoted atrocity domestically and internationally. There are parallels between the historical and contemporary use of media as a method to fuel atrocity against minority groups; illustrating these examples indicates the continued risk of violence and atrocity faced by Black Americans due to these models of persuasive communication. Part …

Keep Charitable Oversight In The Irs, Philip Hackney

Articles

Critics are increasingly calling for Congress to remove charity regulation from the IRS. The critics are wrong. Congress should maintain charity regulation in the IRS. What is at stake is balancing power between the state, charity as civil society, and the economic order. In a well-balanced democracy, civil society maintains its independence from the state and the economic order. Removing charitable jurisdiction from the IRS would blind the IRS to dollars placed in the charitable sector increasing tax and political shelters and wealthy dominance of charities as civil society. A new agency without understanding of, or jurisdiction over, tax cannot …

Limitations Of The “Four-Fifths Rule” And Statistical Parity Tests For Measuring Fairness, Pauline Kim, Manish Raghavan

Scholarship@WashULaw

To ensure the fairness of algorithmic decision systems, such as employment selection tools, computer scientists and practitioners often refer to the so-called “four-fifths rule” as a measure of a tool’s compliance with anti-discrimination law. This reliance is problematic because the “rule” is in fact not a legal rule for establishing discrimination, and it offers a crude test that will often be over- and under-inclusive in identifying practices that warrant further scrutiny. The “four-fifths rule” is one of a broader class of statistical tests, which we call Statistical Parity Tests (SPTs), that compare selection rates across demographic groups. While some SPTs …

Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Megiddo Tamar

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Tamar Megiddo

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

Against Engagement, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

In this Article, we focus on a key dimension of commercial surveillance by data-intensive digital platforms that is too often treated as a supporting cast member instead of a star of the show: the concept of engagement. Engagement is, simply put, a measure of time, attention, and other interactions with a service. The economic logic of engagement is simple: more engagement equals more ads watched equals more revenue. Engagement is a lucrative digital business model, but it is problematic in several ways that lurk beneath the happy sloganeering of a “free” internet.

Our goal in this Article is to isolate …

Redistributing Justice, Benjamin Levin, Kate Levine

Scholarship@WashULaw

This article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas—often areas where defendants are imagined as powerful and victims as particularly vulnerable. In this article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can …

Private Sector Participants In International Rulemaking: Governance Models, Melinda (M.J.) Durkee

Scholarship@WashULaw

International organizations seeking to develop a principled approach to stakeholder participation in rulemaking processes should consider for-profit stakeholders, which can be influential participants. This chapter evaluates potential governance models for their effectiveness in facilitating the benefits and restraining the harms of for-profit influence in rulemaking processes, recommending a balanced approach. A successful governance model should also acknowledge that for-profit stakeholders can use a variety of channels to communicate their input, including individual business entities, trade and industry associations, other non-governmental groups, academics and think tanks, and domestic officials. Because of these sometimes invisible links between for-profit actors and other kinds …

The Ambivalent Logics Of Business Representation In International Organizations, Melinda (M.J.) Durkee

Scholarship@WashULaw

The United Nations and its bodies have 'opened up' to a broad range of non-state actors over the last three decades, including for-profit actors and their representatives. The shift is reflected in the UN's sustainable development goals and the Global Compact, emphasizing public-private partnerships; in greater participation of corporations at treaty conferences; in trade group roles as observers at organizations; and in multi-stakeholder projects. Yet international organizations have generally not developed robust responses to legitimacy concerns about businesses becoming closely involved in lawmaking and governance projects. These concerns focus on interest group capture, entrenchment of western economic elites, creeping privatization, …

Legitimacy And The Major Questions Doctrine, Ronald M. Levin

Scholarship@WashULaw

Questions about the legitimacy of recent Supreme Court decisions are occupying an increasingly prominent place in public law discourse. Last February, a widely discussed feature in the New York Times quoted several well-known law professors' laments that multiple decision by the newly empowered conservative majority of the Court have departed so far from accepted constitutional premises that the professor could not figure out how to teach them to their students

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With due respect to the Chief Justice, I will explain here why the MQD is itself among the few legal developments that I would describe as giving rise to …

Breaking The Rules, Rima Sirota

Georgetown Law Faculty Publications and Other Works

“Breaking the Rules” is a legal research and writing assignment that I crafted for students completing their first year of law school. The assignment honors new students’ desire for skills that will allow them to effectively challenge the status quo of settled but discriminatory legal rules. Part I of this article is an essay that contextualizes and explains the assignment; Part II provides the assignment itself.

Large Constellations Of Small Satellites: The Good, The Bad, The Ugly, And The Illegal, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The most exciting and far-reaching contemporary developments regarding human activities in outer space arise from the recent drastic reductions in the costs of building, launching, and operating satellites, and from the concomitant sudden emergence of large constellations of small, inexpensive, privately-owned spacecraft. These satellites--devoted to highly remunerative functions such as communications (bringing high-speed, affordable internet to underserved constituencies), remote sensing (facilitating land use planning, weather forecasting, and emergency search and rescue), and support for military operations (in Ukraine and elsewhere)--already number in the thousands and will soon reach the tens of thousands.

But in addition to generating billions of …

Similar Fact Evidence In Contractual Interpretation: Bhoomatidevi D/O Kishinchand Chugani Mrs Kavita Gope Mirwani V Nantakumar S/O V Ramachandra And Another [2023] Sghc 37, Calvin John Kaiwen Chirnside

Research Collection Yong Pung How School Of Law

In the recent Singapore High Court case of Bhoomatidevi d/o Kishinchand Chugani Mrs Kavita Gope Mirwani v Nantakumar s/o v Ramachandra and another [2023] SGHC 37, the claimant argued, inter alia, that evidence of a prior contract between the first defendant and a third party should be admitted to prove that the defendant had entered into a loan agreement with her in his personal capacity. Justice Lee Seiu Kin dismissed her claim, applying s. 14 of the Evidence Act.

Access To Justice As Access To Data, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

This Keynote Address, delivered in celebration of the launch of SCALES, discusses the importance of making local and state court data available for research on the functioning of the American civil justice system. It describes the regulatory and administrative challenges of obtaining good-quality data from courts. It calls for a concerted effort among researchers and policymakers to develop open-source technologies for the development of case management systems and data infrastructure. And it urges researchers to foster a collaborative research ecosystem based on broadly sharing court data.

Editing Classic Books: A Threat To The Public Domain?, Cathay Y. N. Smith

Faculty Law Review Articles

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works …

Responsible Governance And Tribal Customary Rights, Kekek Jason Stark

Faculty Law Review Articles

This article explores the question of how tribal constitutional law is interpreted and controlled by traditional tribal law principles in the context of tribal customary rights. Specifically, this article addresses the notion of whether an action, by the tribal government or a citizen, can infringe on the fundamental rights of citizens or whether the infringing action is limited by the customary obligation of responsible governance. This article addresses these competing views and argues that tribal courts can restore harmony—the goal of tribal law—by ensuring responsible governance through the appropriate balancing of tribal customary rights with the need for tribal government …

Overlapping Surgery And Medical Malpractice, Reuben Guttman, Joseph Lanni

Emory Corporate Governance and Accountability Review Perspectives

No abstract provided.

Corporate Retreat In Asia: A New Era Of U.S. Law Firm Globalizations, Jocelyn Zhao

Emory Corporate Governance and Accountability Review Perspectives

No abstract provided.

When Eating The Rich Has Consequences: The Potential Long-Term Effects Of The Inflation Reduction Act’S Drug Price Negotiation Program, Allison Hickman

Emory Corporate Governance and Accountability Review Perspectives

No abstract provided.

Law Firms’ Diversity Programs On Unfirm Footing, Mike Vernon

Emory Corporate Governance and Accountability Review Perspectives

No abstract provided.

Biomanipulation, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Scientific and technological advances in the latter part of the 20^th century catapulted biometrics forward. Thus, Carleton Simon in 1935 may have postulated using retinal vasculature for biometric identification. But it took forty years for an Eyedentify patent to bring the idea to fruition. In 1937, John Henry Wigmore similarly anticipated using oscilloscopes to identify individuals by speech patterns. Decades later, digitization and speech processors made voiceprint identification possible. Biological discoveries led to the adoption of deoxyribonucleic acid (DNA) sequencing. And while Alphonse Bertillon in the late 19^th century postulated iris distinctions, it was only in 1991 that …

The Short And Troubled History Of The Printed State Administrative Codes And Why They Should Be Preserved, Kurt X. Metzmeier

Faculty Scholarship

This article makes a case for the historical importance of early state administrative codes and urges that law libraries preserve them for future researchers of state administrative law and policy.

Service Of A Subpoena Through Alternative Means: Social Media, Taylor Eynon

Bankruptcy Research Library

(Excerpt)

Service of a subpoena via a means besides personal service, i.e., "alternative service," has been "routinely authorized" under Rule 45 of the Federal Rules. The functional purpose of requiring delivery is to "ensure receipt," which then allows the enforcement of a subpoena to be consistent with due process. With the development of new means of communication, however, an emerging issue has become whether service of a subpoena via social media may provide similar "evidence of actual receipt." Many courts have read Rule 45 broadly to allow for service of a subpoena through social media if certain fundamental requirements are …

Whether Electricity Is A "Good" Under 11 U.S.C. § 503(B)(9), Zhiqian Ke

Bankruptcy Research Library

(Excerpt)

Under section 503(b)(9) of title 11 of the United States Code (the "Bankruptcy Code"), administrative expenses should be allowed for "the value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor in the ordinary course of such debtor’s business." Courts uniformly analyzed the Uniform Commercial Code’s (the "UCC") definition of “goods” in the absence of a definition in the Bankruptcy Code. However, courts are split on whether electricity is a good.

This memorandum will explore the courts' …

Corporate Insider Status As A Badge Of Fraud Under 11 U.S.C. § 548, Aria Lugo

Bankruptcy Research Library

(Excerpt)

Section 101(31)(B)(i) - (vi) of title 11 of the United States Code (the "Bankruptcy Code") outlines a number of parties who are considered corporate insiders. Additionally, courts have identified a class of "non-statutory" insiders, who fall outside of the parties defined in section 101 but are still considered insiders in the context of corporate bankruptcy. In a corporate bankruptcy, who is an insider, and what are the implications of being an insider with respect to fraudulent transfer claims?

This memorandum explores insider liability under chapter 11 of title 11 of the United States Code. Part I identifies the parties …