Law and Society Commons^™

Consent, Legitimation, And Dysphoria, Robin West

Georgetown Law Faculty Publications and Other Works

Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad. This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics. Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex. Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province. This development is justly celebrated as a breakthrough in women's rights and equality, …

The Current Role Of The Environment In Reinforcing Acts Of Domestic Terrorism: How Fear Of A Climate Change Apocalypse May Strengthen Right-Wing Hate Groups, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Right-wing extremist organizations, like white supremacists and nativists, are using the environment as a rallying cry to gain supporters of their anti-social agendas. Apocalyptic rhetoric about climate change and the lack of action to combat it has frightened some people into accepting the simplistic, violent worldview of these groups. Although the violence is new, the coupling of racism and anti-immigration rants with environmental goals is not—it is part of our cultural history. This Article provides some background on the threats of environmental and domestic terrorism facing our nation and describes how the present-day rhetoric of fear of an environmental Armageddon …

Law’S Sentiments, Robin West

Georgetown Law Faculty Publications and Other Works

The chapter argues that law and the Rule of Law do not displace moral sentiments, but rather require them, and sometimes produce them. Law gives us some sense of physical security and thereby makes possible the fellow feeling and empathy that are the root of moral action. The chapter seeks to make this claim plausible by looking at fiction that describes various dystopian lawless states, including the hierarchy of the Church, which law has been loath to enter, badly policed neighborhoods, nineteenth century American slavery, and early twentieth century patriarchal marriages. One lesson of much of this fiction is that …

The Lancet Commission On Global Health Law: The Transformative Power Of Law To Advance The Right To Health, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

A new report by The Lancet-O’Neill-Georgetown University Commission on Global Health and the Law shows how law can fulfill the global pledge of the human right to health, while “leaving no one behind.” I call this “global health with justice.” We need both health and justice. By global health, I mean ever increasing indicators of good health and increased longevity in all countries around the world. By justice I mean that the global “good” of health must be fairly distributed both within and among countries. The Lancet Commission report offers a comprehensive roadmap towards realizing the law’s power to make …

Who Cares About Patents? Cross-Industry Differences In The Marginal Value Of Patent Term, Neel U. Sukhatme, Judd N.L. Cramer

Georgetown Law Faculty Publications and Other Works

How much do market participants in different industries value a marginal change in patent term (i.e., duration of patent protection)? We explore this research question by measuring the behavioral response of patentees to a rare natural experiment: a change in patent term rules, due to passage of the TRIPS agreement. We find significant heterogeneity in patentee behavior across industries, some of which follows conventional wisdom (patent term is important in pharmaceuticals) and some of which does not (it also appears to matter for some software). Our measure is highly correlated with patent renewal rates across industries, suggesting the marginal value …

Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon

Georgetown Law Faculty Publications and Other Works

Defendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.

Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration, …

Affordable Housing: Of Inefficiency, Market Distortion, And Government Failure, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

In this essay, I examine the types of costs that are imposed on society as a whole due to the absence of a sufficient number of decent housing units that are affordable to the low-income population. These costs present themselves in relation to health care, education, employment, productivity, homelessness, and incarceration. Some of the costs are direct expenditures while others are the result of lost opportunities.

My hypothesis is that these costs are significant and offer, at the very least, a substantial offset to the cost of creating and subsidizing the operation of the necessary number of affordable housing units …

Supervised Injection Facilities: Legal And Policy Reforms, Lawrence O. Gostin, James G. Hodge, Chelsea L. Gulinson

Georgetown Law Faculty Publications and Other Works

The US Centers for Disease Control and Prevention reported that more than 70 000 deaths from drug overdoses occurred in 2017, including prescription and illicit opioids, representing a 6-fold increase since 1999. Innovative harm-reduction solutions are imperative. Supervised injection facilities (SIFs) create safe places for drug injection, including overdose prevention, counseling, and treatment referral services. Supervised injection facilities neither provide illicit drugs nor do their personnel inject users. Supervised injection facilities are effective in reducing drug-related mortality, morbidity, and needle-borne infections. Yet their lawfulness remains uncertain. The Department of Justice (DOJ) recently threatened criminal prosecution for SIF operators, medical personnel, …

Living, Aging, And Dying In Healthy And Just Societies: Life Lessons From My Father, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

My father passed away at 102 years old. He lived, aged, and died well. But that is rare in the United States and globally. The World Health Organization defines palliative care “throughout the life course” as improving quality of life for patients and families and relieving pain and suffering, while paying special attention to physical, psychosocial, and spiritual functioning. That’s the global vision, but then there’s the reality. Palliative care, in practice, has been little more than pain relief at life’s end—and in much of the world, not even that.

We need to reimagine palliation, embracing a communal or relational …

Revisiting Controlled Digital Lending Post-Redigi, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Now that the Second Circuit has ruled on the ReDigi appeal, some libraries and users may be curious to see how the decision factors into controlled digital lending (CDL) efforts. To understand the interest and the implications, we first need to establish the basic contours of copyright, fair use, CDL, and ReDigi.

Race Ipsa Loquitur, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The goal of this Article is to make the existence of invidious racial discrimination in the United States so palpable that it can no longer be denied. Part I argues that racial inequality is so pervasive, unconscious, and structural that it has simply become an assumed fixture of United States and is rarely even noticed. Section I.A describes the history of racial subordination in the United States. Section I.B invokes the concept of disparate impact to illustrate the continuing manifestations of invidious discrimination in contemporary culture. Part II describes the manner in which the culture nevertheless chooses to deny the …

The Public Trust Doctrine, Outer Space, And The Global Commons: Time To Call Home Et, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Space exploration is heating up. Governments and private interests are on a fast track to develop technologies to send people and equipment to celestial bodies, like the moon and asteroids, to extract their untapped resources. Near-space is rapidly filling up with public and private satellites, causing electromagnetic interference problems and dangerous space debris from collisions and earlier launches. The absence of a global management system for the private commercial development of outer space resources will allow these near space problems to be exported further into the galaxy. Moreover, without a governing authority or rules controlling entry or limiting despoliation, outer …

Techno-Optimism & Access To The Legal System, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

For legal technologists, apps raise the prospect of putting the law in the hands of disadvantaged people who feel powerless to deal with their legal problems. These aspirations are heartening, but they rest on unrealistic assumptions about how people living in poverty deal with legal problems. People who are poor very rarely resort to the law to solve their problems. In the situations when they do seek solutions, they confront educational and material impediments to finding, understanding, and using online legal tools effectively. Literacy is a significant barrier. More than 15 percent of all adults living in the United States …

Health Care Costs And The Arc Of Innovation, Neel U. Sukhatme, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We point instead to the nexus of economics, mutual empathy, and social expectations that drives medical innovation and locks in low-value technologies. We show how law reflects and reinforces this nexus and how and why health-policy-makers avert their gaze.

Next, we propose to circumvent these barriers instead of surmounting them. Rather than targeting today’s excessive spending, …

Discounting Women: Doubting Domestic Violence Survivors’ Credibility And Dismissing Their Experiences, Deborah Epstein, Lisa A. Goodman

Georgetown Law Faculty Publications and Other Works

In recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight-style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories …

Pursuing Accountability For Perpetrators Of Intimate Partner Violence: The Peril (And Utility?) Of Shame, A. Rachel Camp

Georgetown Law Faculty Publications and Other Works

This Article explores the use of shame as an accountability intervention for perpetrators of intimate partner abuse, urging caution against its legitimization. Shaming interventions—those designed to publicly humiliate, denigrate, or embarrass perpetrators or other criminal wrongdoers—are justified by some as legitimate legal and extralegal interventions. Judges have sentenced perpetrators of Intimate Partner Violence (“IPV”) to hold signs reading, “This is the face of domestic abuse,” among other publicly humiliating sentences. Culturally, society increasingly uses the Internet and social media to expose perpetrators to public shame for their wrongdoing. On their face, shaming interventions appear rational: perpetrators often belittle, humiliate, and …

The Public Trust In Public Art: Property Law's Case Against Private Hoarding Of “Public” Art, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important …

Cities, Government, Law, And Civil Society, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This Article develops a first iteration of a locality-centered account of civil society and the role for government and law within it. I examine a particular municipality—the City of Pittsburgh—to provide a concrete example from which to generate ideas and judgments about the terrain and content of this localist account. While it may seem startling to approach the large goal of providing a generalizable account of civil society and municipal agency from a review of one U.S. city, I believe that doing so keeps the account grounded in particularities that highlight the very concrete ways in which civil society both …

Good Person, Good Prosecutor In 2018, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Nearly twenty years ago, I wrote an essay on the ethics of prosecution in a time of mass incarceration called “Can You Be a Good Person and a Good Prosecutor?” I am both pleased and perplexed that the essay, which caused some controversy at the time, continues to strike a chord—at least with the organizers of this online conversation. I appreciate the invitation to weigh in on whether you can be a good person and a good prosecutor in 2018.

The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Moralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches—those that are opportunistic, obstructive, or otherwise inefficient—as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La Règle du Jeu (“The …

Disrupting The Path From Childhood Trauma To Juvenile Justice: An Upstream Health And Justice Approach, Yael Cannon, Andrew Hsi

Georgetown Law Faculty Publications and Other Works

A groundbreaking public health study funded by the U.S. Centers for Disease Control and Prevention (CDC) and the Kaiser Foundation found astoundingly high rates of childhood trauma, including experiences like abuse, neglect, parental substance abuse, mental illness, and incarceration. Hundreds of follow-up studies have revealed that multiple traumatic adverse childhood experiences (or “ACEs”) make it far more likely that a person will have poor mental health outcomes in adulthood, such as higher rates of depression, anxiety, suicide attempts, and substance abuse. Interestingly, the original ACE Study examined a largely middle-class adult population living in San Diego, but subsequent follow-up studies …

Law's Emotions, Robin West

Georgetown Law Faculty Publications and Other Works

The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the …

A Brook With Legal Rights: The Rights Of Nature In Court, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see …

Collaborative Academic Library Digital Collections Post- Cambridge University Press, Hathitrust And Google Decisions On Fair Use, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Academic libraries face numerous stressors as they seek to meet the needs of their users through technological advances while adhering to copyright laws. This paper seeks to explore one specific proposal to balance these interests, the impact of recent decisions on its viability, and the copyright challenges that remain after these decisions.

Forced Migration, The Human Face Of A Health Crisis, Lawrence O. Gostin, Anna E. Roberts

Georgetown Law Faculty Publications and Other Works

Nearly 60 million refugees, asylum-seekers and internally displaced persons (IDPs) fled their homes in 2014, predominately from war-torn Syria, Afghanistan and Somalia. The global response to assisting this vulnerable group has been wholly incommensurate with the need given the profound health hazards faced by forced migrants at each stage of their journey. The majority of forced migrants are housed in lower-income countries that do not have the infrastructure to assist the significant numbers of individuals who are crossing their borders and the humanitarian organizations who seek to assist in the response are grossly underfunded and under-resourced.

Countries have varying responsibilities …

Interpreting Liberty And Equality Through The Lens Of Marriage, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but …

Community Lawyering: Introductory Thoughts On Theory And Practice, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

There are several fundamental questions that one might ask in seeking the meaning of the term "community lawyer." Albeit somewhat theoretical, the most basic questions involve delving into exactly what is meant by the term "community." For what, exactly, is the community-lawyer lawyering? Further, once a client has been identified, questions will arise about how the lawyer should relate to that client and about the role the lawyer ought to play in assisting the client to achieve its goals. There is a long and rich literature concerning the latter question but a fairly sparse body of legal writing on the …

The Dawn Of Social Intelligence (Socint), Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

More information about citizens’ lives is recorded than ever before. Because the data is digitized, it can be accessed, analyzed, shared, and combined with other information to generate new knowledge. In a post-9/‌11 environment, the legal standards impeding access to such data have fallen. Simultaneously, the advent of global communications and cloud computing, along with network convergence, have expanded the scope of information available. The U.S. government has begun to collect and to analyze the associated data.

The result is the emergence of what can be termed “social intelligence” (SOCINT), which this Article defines as the collection of digital data …

Mapping A Cultural Studies Of Law, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In this chapter I briefly map the terrain of a set of scholarly approaches that could be called a cultural analysis of law. A cultural analysis or a cultural studies of law generally starts with the dual premise that law is a set of meaning-making practices that exists within and is the product of a particular culture and that the culture is a set of meaning-making practices that exists within and is the product of a particular set of laws.

In this chapter I unpack and elaborate this foundational idea by exploring three routes along which a cultural analysis of …

Tax Advisors And Conflicted Citizens, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Thousands of lawyers are involved every day in advising clients outside of litigation. These lawyers counsel clients on how they can benefit from or avoid violating statutes, regulations, and other sources of law. How should we think about the obligations of the lawyer in this setting? This article argues that we should eschew a single prescriptive model of the advisor in favor of a pluralistic conception that bases responsibilities on the salient factors of the context in which the advisor operates.

The model of the advocate that suggests that the lawyer take a relatively aggressive approach to interpreting the legal …