Digital Commons Network^™

Malleable Law: The (Mis)Use Of Legal Tools In The Pursuit Of A Political Agenda, Manuel A. Gomez

Faculty Publications

This paper explores the manipulative use of the law for political gain. It describes instances in which law is distorted and camouflaged under an apparent goal of pursuing justice, social change or development, but its real function is to facilitate the attainment of self-interested political gains or other ends. The malleability of law is illustrated in this article with a description of the social programs known as “Misiones Bolivarianas” implemented in Venezuela since 2004. The Misiones were ostensibly portrayed as effective government measures launched to reduce poverty and fight inequality in areas where traditional state institutions had failed.

The Broken Safety Net: A Study Of Earned Income Tax Credit Recipients And A Proposal For Repair, Sara Sternberg Greene

Faculty Scholarship

The Earned Income Tax Credit (EITC) is the largest federal antipoverty program in the United States and garners almost universal bipartisan support from politicians, legal scholars, and other commentators. However, assessments of the EITC missed an imperative perspective: that of EITC recipients themselves. Past work relies on largely unconfirmed assumptions about the behaviors and needs of low-income families. This Article provides a novel assessment of the EITC based on original data obtained directly from 194 EITC recipients through in-depth qualitative interviews. The findings are troubling: They show that while the EITC has important advantages over welfare, which it has largely …

Government Disapproval Of Religion, Jay D. Wexler

Faculty Scholarship

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a …

Gone With The Wind: Why Even Utility Patents Cannot Fence In Self-Replicating Technologies, Jessica Lynd

American University Law Review

No abstract provided.

Towards A Framework Convention On Global Health: A Transformative Agenda For Global Health Justice, Lawrence O. Gostin, Eric A. Friedman

Georgetown Law Faculty Publications and Other Works

International law has responded weakly to the inequities in health care, public health, and the broader determinates of health that collectively cause the greatest loss of lives and human potential every year. Approximately one-third of global deaths can be attributed to enduring and unconscionable inequities. Despite significant progress in improving global health over the past several decades, these inequities persist. Current global governance for health is inadequate to the task of resolving these inequities, from lack of accountability and enforcement to inadequate funding and the absence of leadership required to respond to the threats to health that arise from other …

Closing Wall Street’S Commodity And Swaps Betting Parlors: Legal Remedies To Combat Needlessly Gambling Up The Price Of Crude Oil Beyond What Market Fundamentals Dictate, Michael Greenberger

Faculty Scholarship

The price of crude oil in the futures markets has oscillated wildly during the past five years. Although these price swings may partly be a result of insufficient supply meeting large demand for oil, economic data demonstrate that market fundamentals have in fact remained in equilibrium. An overwhelming number of market participants, financial analysts, and academics have instead shown that unregulated excessive speculation in the oil futures markets is to blame. Such excessive speculation is a result of the financialization of commodities, which has exacerbated price swings in oil because the speculative upward betting causes artificially high prices that do …

Diversifying Clearinghouse Ownership In Order To Safeguard Free And Open Access To The Derivatives Clearing Market, Michael Greenberger

Faculty Scholarship

Implementing the rigorous governance and ownership standards established in the Dodd-Frank Wall Street Reform and Consumer Protection Act3 for derivatives clearing organizations (DCOs) will promote free and open access to clearing and reduce systemic risk within what is now the $700 trillion notional value derivatives market. Such standards are central to and advance the key regulatory tenants of Dodd-Frank: i.e., to restore transparency, capital adequacy, and accountability to what was the unregulated over-the-counter (OTC) derivatives market by ensuring that swaps are cleared through financially sound DCOs. Also, these rules will promote competition by curtailing large swap dealers‘ (SDs) control …

Economics And/Of Science: The Meaning(S) Of Financial Bias And The Ideal Of Interest-Free Science In Law, David S. Caudill

Faculty Publications

Images of scientific research and funding conventions are important in legal contexts when, for example, a trial judge or agency administrator evaluates the integrity of a scientific expert or risk assessment report — is industry affiliation or sponsorship of research a marker of bias, and should the results of “independent” research be given greater weight? In the discourse concerning the commercialization of science, there is a geography of positions reflecting different images of how science is affected by, or alternatively rises above, financial or economic pressures or entanglements. Of course, science costs and has always cost a lot of money, …

Solving "The Gravest Natural Resource Shortage You've Never Heard Of": Applying Transnational New Governance To The Phosphate Industry, Chelsae R. Johansen

Vanderbilt Journal of Transnational Law

Experts believe that global reserves of phosphates, an essential and irreplaceable ingredient in fertilizers, will only last another fifty to one hundred years. Although the consequences of a phosphate shortage include a global famine and decreased world population, the phosphate industry today operates with little concern for sustainable mining and use of the resource. Because the current system of international governance is neither raising awareness of the looming phosphate shortage nor incentivizing phosphate-industry members to act sustainably, the future of phosphates and of food security depend on a decentralized system of internal industry governance known as Transnational New Governance. This …

Animal Protection Laws Of Singapore And Malaysia, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article offers an overview and assessment of the laws relating to the protection of animals in Singapore and Malaysia. The focus is on identifying the interpretations of the statutory offences of cruelty that will best promote their objectives and effectiveness.

Conflicts Of Interest In Medicine, Research, And Law: A Comparison, Stacey A. Tovino

Scholarly Works

Several of the remarks and articles presented in this symposium have addressed conflicts of interest arising during the provision of legal counsel to individuals who are elderly, including specific conflicts of interest implicated by estate planning, retirement planning, and long-term care planning. Topics examined thus far include conflicts of interest with respect to the application of rules of confidentiality within state rules of professional conduct to elderly clients with impaired decision-making capacity; conflicts of interest involving representative payees for Social Security benefits; conflicts of interest in distributions when parents enter into marriages that are unprotected by law; and conflicts of …

Exploring Local Food System Practices And Perceptions: Insights From Florida's Snap-Authorized Farmers' Markets, Leslie Babiak

USF Tampa Graduate Theses and Dissertations

Despite heightened interest in creating local food systems that enhance health of ecologies, economies, and all members of communities, the public space of farmers' markets is far less than inherently equitable. This is particularly concerning given America's unprecedented crisis of food hardship and related disease, which disproportionately affects lower income populations. This research addresses the social justice implications of SNAP (food stamp) operations for locally oriented food systems. Pioneering practices of three of Florida's SNAP-authorized farmers' markets, and the attitudes and behaviors of one-hundred-seventy-six market patrons, were explored through customer surveys, market manager interviews, and environmental assessments. Qualitative and quantitative …

Ecological Diversity In Hillsborough County, Florida: Correlations Between Landscape Metrics And Socio-Demographic Variables, David Godfrey

USF Tampa Graduate Theses and Dissertations

Landscape metrics, a means of quantifying landscape attributes, are frequently used in landscape ecology to describe the spatial characteristics of a landscape, but they have been less often used in anthropology. Using geographic information system (GIS) software, this study tests a method that investigates statistical correlations between groundcover landscape metrics and socio-demographic variables in Hillsborough County, Florida. Statistically significant correlations were found, illustrating the potential utility of this exploratory method. Wealthier areas with fewer ethnic minorities tend to be more fragmented and diverse in terms of groundcover; these areas also tend to have a lower percentage of impervious surfaces. The …

The Fda’S Graphic Tobacco Warning And The First Amendment, David Orentlicher

Scholarly Works

No abstract provided.

'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …

The U.S. Department Of Agriculture As A Public Health Agency, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Introduction: The "war on obesity" is now well into its second decade.' What began as an effort to encourage medical doctors to screen and treat patients whose weight put them at risk for health problems has transformed into a much broader public health campaign to address the root causes of obesity. A growing number of state, territorial and local health departments are currently exploring new ways to promote healthy eating and physical activity. At the federal level, the U.S. Centers for Disease Control and Prevention (CDC) has made "nutrition, physical activity and obesity" a top priority.

Shame, Blame, And The Emerging Law Of Obesity Control, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

In using law as a tool to combat the obesity epidemic, legal scholars and policymakers are drawing heavily on the lessons of tobacco control. This Article describes the resulting emergence of "obesity control law" and argues for a radical reorientation of it from a "denormalization" strategy based on the tobacco control experience to a "destigmatization" strategy based on the HIV prevention experience. The war on obesity is nearing a political crossroads. Subsidies and food industry regulations aimed at making our environment more conducive to physical activity and healthy eating are in danger of losing out to cheaper and more politically …

Getting Ahead Of The Curve: Supporting Adaptation To Long-Term Climate Change And Short-Term Climate Variability Alike, Alexis Saba, Michela Biasutti, Michael B. Gerrard, David B. Lobell

Faculty Scholarship

The United Nations Framework Convention on Climate Change (UNFCCC) has been meeting since 1995, and in recent years, it has increasingly focused on facilitating and funding climate change adaptation in developing countries. Other sources of financing, from multilateral development banks to bilateral and multilateral agreements among countries, are also providing resources for adaptation. Simultaneously, climate scientists around the world are updating their forecasts on the nature of future climate change. This article seeks to examine the scope of funding available for climate change adaptation and how climate change forecasts are used to plan for and evaluate climate change adaptation. We …

Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau

Faculty Scholarship

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after …

Lindsay's Legacy: The Tragedy That Triggered Law Reform To Prevent Teen Dating Violence, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

Snake Oil Salesman Or Purveyors Of Knowledge: Off-Label Promotions And The Commercial Speech Doctrine, Constance E. Bagley, Joshua Mitts

Faculty Scholarship

The Second Circuit’s December 2012 decision in United States v. Caronia striking down the prohibition on off-label marketing of pharmaceutical drugs has profound implications for economic regulation in general, calling into question the constitutionality of restrictions on the offer and sale of securities under the Securities Act of 1933, the solicitation of shareholder proxies and periodic reporting under the Securities Exchange Act of 1934, mandatory labels on food, tobacco, and pesticides, and a wide range of privacy protections. In this Article we suggest that Caronia misconstrues the Supreme Court’s holding in Sorrell v. IMS Health, which was motivated by concerns …

Private Standards Organizations And Public Law, Peter L. Strauss

Faculty Scholarship

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute (ANSI), and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors the Occupational Safety and Health Administration (OSHA) requires for use in work-place caution …

The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon

Faculty Scholarship

Cass Sunstein’s book Simpler recounts the author’s efforts during his tenure in the first Obama administration to apply the policy tools he helped derive from behavioral economics. In this review, I suggest that, while Sunstein reports some notable achievements, he exaggerates the utility of the behaviorist toolkit. Behaviorist-inspired interventions are marginal to most of the largest policy problems, and they played little role in the Obama administration’s most important initiatives. The book also reflects a misguided political strategy.

Becker And Foucault On Crime And Punishment – A Conversation With Gary Becker, François Ewald, And Bernard Harcourt: The Second Session, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In his 1979 lectures at the Collège de France, The Birth of Biopolitics, Michel Foucault discussed and analyzed Gary Becker’s economic theory of crime and punishment, originally published in The Journal of Political Economy in 1968 under the title “Crime and Punishment: An Economic Approach.” In this historic, second encounter at the University of Chicago, Gary Becker responds to Foucault’s lectures and possible critical readings of his writings on crime and punishment, in conversation with Professors François Ewald (who was, at the time in 1979, Foucault’s assistant at the Collège and one of Foucault’s closest interlocutors) and Bernard Harcourt (a …

Machine Speech, Tim Wu

Faculty Scholarship

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?

The Returns To Criminal Capital, Thomas Loughran, Holly Nguyen, Alex R. Piquero, Jeffrey Fagan

Faculty Scholarship

Human capital theory (Becker 1962; Mincer 1958; Schultz 1960; 1961) posits that individuals can increase their labor market returns through investments in education and training. This concept has been studied extensively across several disciplines. An analog concept of criminal capital, while the focus of speculation and limited empirical study, remains considerably less developed theoretically and methodologically. This paper offers a formal theoretical model of criminal capital indicators and tests for greater illegal wage returns using a sample of serious adolescent offenders, many of whom participate in illegal income-generating activities. Our results reveal that, consistent with human capital theory, there are …

Better Health, But Less Justice: Widening Health Disparities After National Federation Of Independent Business V. Sebelius, Emily W. Parento, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

At the time it was enacted in 2010, the Patient Protection and Affordable Care Act (ACA) was widely applauded by health activists, as it meant that the United States would at last join the overwhelming majority of industrialized countries in providing its population with guaranteed access to affordable health care. Roughly half of the increase in access to health insurance was to come from the expansion of Medicaid eligibility to all U.S. citizens and legal residents with income below 138% of the Federal Poverty Level. However, the Supreme Court’s 2012 ruling in National Federation of Independent Business v. Sebelius ( …

Bloomberg’S Health Legacy: Urban Innovator Or Meddling Nanny?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Michael Bloomberg leaves the mayoralty of New York City, with his health legacy is bitterly contested. The public health community views him as an urban innovator—a rare political and business leader willing to fight for a built environment conducive to healthier, safer lifestyles. To his distractors, however, Bloomberg epitomizes a meddling nanny—an elitist dictating to largely poor and working class people about how they ought to lead their lives. His policies have sparked intense public, corporate, and political ire—critical of sweeping mayoral power to socially engineer the city and its inhabitants.

Here, I seek to show how Bloomberg has fundamentally …

National Security Pedagogy: The Role Of Simulations, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

This article challenges the dominant pedagogical assumptions in the legal academy. It begins by briefly considering the state of the field of national security, noting the rapid expansion in employment and the breadth of related positions that have been created post-9/11. It considers, in the process, how the legal academy has, as an institutional matter, responded to the demand.

Part III examines traditional legal pedagogy, grounding the discussion in studies initiated by the American Bar Association, the Carnegie Foundation, and others. It suggests that using the law-writ-large as a starting point for those interested in national security law is a …

Windsor Products: Equal Protection From Animus, Dale Carpenter

Faculty Journal Articles and Book Chapters

The Supreme Court's opinion in United States v. Windsor has puzzled commentators, who have tended to overlook or dismiss its ultimate conclusion that the Defense of Marriage Act was unconstitutional because it arose from animus. What we have in Justice Kennedy’s opinion is Windsor Products — an outpouring of decades of constitutional development whose fountainhead is Carolene Products and whose tributaries are the gay-rights and federalism streams. This paper presents the constitutional anti-animus principle, including what constitutes animus, why it offends the Constitution, and how the Supreme Court determines it is present. The paper also discusses why the Court was …