Digital Commons Network^™

The Rise Or The Fall Of International Law?, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

This Article argues that traditional international law is healthy in the sense that there are more international agreements than ever, and States continue to serve important roles in the international system. It is falling, however, as the sole focus of international legal efforts. It is necessary to redefine international law to include actors other than States among those who make international norms and who implement and comply with them, and to include legal instruments that may not be formally binding. These developments raise three important issues: the need for the new actors to be accountable and for the new norms …

An Institutional Emphasis, Lance Liebman

Faculty Scholarship

Professor Schwartz is an important scholar of the interface between the difficult moral concept of privacy and the new information technologies. Someday a book will tell the story of modem history through the lens of privacy: village lives well known to neighbors; the claims of the national state (taxes, military service); the social welfare state; and the possibilities and dangers of modem biology. As Paul Schwartz has written, DNA and other tools can tell us a great deal about ourselves and can improve our lives; they can also tell employers, drug companies, prospective in-laws, and the police things we prefer …

Patents And Cumulative Innovation, Clarisa Long

Faculty Scholarship

Proprietary rights to the products of biomedical research have repeatedly been a source of controversy for over twenty years. Patents on biomedical innovations have allowed scientists, academics, and research institutions to raise research funds and have contributed to the growth of the biotechnology industry. But “one firm’s research tool may be another firm’s end product.” Patents have been a source of great concern for academic and basic researchers, who fear that proprietary rights to basic research results will hamper the progress of science, stifle the free flow of new knowledge and the dissemination of research results, and chill the research …

Proprietary Rights And Why Initial Allocations Matter, Clarisa Long

Faculty Scholarship

Initial allocations of proprietary rights matter because who starts out holding the rights helps determine who ends up holding the rights. In patent law, proprietary rights are granted to those who are first to invent. But entities who win the race to patent an invention are not necessarily the final, or best, or most efficient users of the technology. If proprietary rights, particularly patents on basic research results, could be traded efficiently so that downstream innovators could obtain them from initial rights holders easily, then initial allocations of proprietary rights would not matter so much. Transferring proprietary rights is costly, …

How Persuasive Is Natural Law Theory?, Kent Greenawalt

Faculty Scholarship

This Article, in honor of John Finnis, evaluates the persuasiveness of one central element of natural law theory – its claim to an objective moral truth discoverable by reason. Although I stand outside the tradition, my interest in natural law theory goes back to my college days. John Finnis, especially in his work Natural Law and Natural Rights, has much enriched my understanding of moral, political, and legal philosophy. Prior to that book, natural lawyers and analytic jurists had little to say to each other; by and large, the members of each group had scant respect for the scholarly endeavors …

Critical Approaches To Property Institutions, Michael A. Heller

Faculty Scholarship

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it …

Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis

Faculty Scholarship

This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case ("Hormones case") is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular …

Personal Harms And Political Inequities, Suzanne B. Goldberg

Faculty Scholarship

When we think back to where the legal battle for gender equality and the rights of gay people stood a century ago, we see that, in fact, there was not much of a battle. Indeed, advocates for change were seldom triumphant. A survey in 1900 would have shown that American women were twenty years away from obtaining the right to vote, were unfit to be lawyers according to the U.S. Supreme Court, and were nowhere near being eligible-let alone required-to serve on juries. The survey would also have revealed a wide-ranging web of federal and state laws and policies that …

Annual Survey Of Virginia Law: Legal Issues Involving Children, Robert E. Shepherd Jr.

University of Richmond Law Review

The past year generally has been another quiet one for children's legal issues in Virginia, although it was a busier than normal year in the United States Supreme Court with the grandparents' visitation case, the Texas high school football game prayer case, a significant Title I case involving the provision of instructional material to religiously operated schools, and the gay Boy Scout leader case. Not as much occurred at the state level, with little legislation of great significance to children and youth being enacted at the 2000 General Assembly session. However, a succession of cases interpreting and applying Baker v. …

The Reawakening Of Marriage, Raymond C. O'Brien

Scholarly Articles

This Article contends that the convergent societal pressures from the same-sex marriage debate, the effect of the welfare legislation to define family, and the allowance of greater religious involvement in marriage preparation and divorce will precipitate a reawakening of marriage. The emergence of covenant marriage, the public debate over no-fault divorce, the resurgence of fault grounds, and Florida's enactment of its Marriage Preparation and Preservation Act are ramifications of this reawakening. Public concern over the frequency of divorce and the resulting adverse consequences for children and adults, indicate a change in attitude concerning marriage, divorce and family. Covenant marriage is …

Alternative Liability In Litigation Malpractice Actions: Eradicating The Last Resort Of Scoundrels, Lawrence W. Kessler

San Diego Law Review

The legal malpractice tort, however, has managed to withstand the winds of legal change. Particularly crucial has been the refusal to apply alternative causation doctrines. The refusal to apply causation doctrines that have been embraced in other areas has significant social effects. As a result, the consumers of legal services receive less protection from the courts than do the consumers of products or medical services.

Cultivating The Genetic Commons: Imperfect Patent Protection And The Network Model Of Innovation, Jonathan M. Barnett

San Diego Law Review

This Article enters this debate and argues the following position. Assuming that antitrust authorities persist in certain strategies to impede patent consolidation, the recent introduction of patent rights for certain biotechnological innovations is likely to encourage private investment in the genetic commons and reduce (or, at least, not enhance) the accessibility costs that could stunt technological advance. To reach this conclusion, this Article shows that the two leading theories of patent protection, the "incentive" theory7 and the "prospect" theory,8 do not explain private industry's willingness to sink significant investment capital into highly uncertain biopharmaceutical projects. These theories offer insufficient explanations …

Facilitating Scientific Research: Intellectual Property Rights And The Norms Of Science - A Response To Rai And Eisenberg, F. Scott Kieff

GW Law Faculty Publications & Other Works

Arti Rai's article in the Fall 1999 issue of the Northwestern University Law Review explores the proper use of both legal rules and prescriptive norms to shape behavior in the basic biological research community. Rai's article builds upon the extensive work in this area by Rebecca Eisenberg, which first attained prominence through Eisenberg's article in the December 1987 issue of the Yale Law Journal. Eisenberg concludes that the use of patents in the area of basic biological research may frustrate central norms of the community. Rai prescribes concerted public and private action as the best tools for avoiding patents and …

A Technological Dream Turned Legal Nightmare, Brandon E. Ehrhart

Vanderbilt Journal of Transnational Law

The U.S. Global Positioning System (GPS) provides precise positioning information to anyone in the world, regardless of nationality, as long as they have access to an inexpensive receiver. However, in managing and providing the GPS for no charge, the United States may have opened itself to worldwide tort exposure. This Note analyzes U.S. liability for negligently operating the GPS under the Federal Tort Claims Act (FTCA) in four categories.

First, this Note examines the transformation of the GPS from its domestic military beginnings to its current role as the foremost radionavigation technique in history and as a vital tool to …

Women And Globalization: The Failure And Postmodern Possibilities Of International Law, Barbara Stark

Vanderbilt Journal of Transnational Law

This Article examines the role of international law, particularly human rights law, as it relates to the process of globalization and its effects on women. Initially, the Article sets the stage by describing the course of globalization and the dramatic impact it has had on the world economy. The Author next examines the multiple and contradictory consequences of globalization for women.

The Article approaches this analysis from two perspectives. First, from a 'classic perspective," the Author contends that international law is the only legal system with the potential to regulate the principal agents of globalization--multinational corporations, banks and investment firms, …

The Legacy Of Geographical Morality And Colonialism: A Historical Assessment Of The Current Crusade Against Corruption, Padideh Ala'i

Vanderbilt Journal of Transnational Law

This Article examines the legacy of the rule of geographical morality--that is, the norm by which a citizen of a country in the North may engage in acts of corruption in any country in the South, including bribery and extortion, without the attachment of any moral condemnation to those acts. Part I of the Article begins by reviewing the impeachment trial of Warren Hastings, who served as the Governor of Bengal from 1772 until 1785, on charges of bribery and corruption. It was during that impeachment proceeding when the words "principle of geographical morality" were used to describe Hastings' defense. …

Health Care Divided: Race And Healing A Nation, Sidney D. Watson

All Faculty Scholarship

Race matters. Race—particularly racial segregation—casts a pervasive shadow over the organization of American health care. It influences the ownership and governance of institutional providers. It helps account for the high cost of health care in the United States. It contributes to America’s abysmal health status, among the worst of the industrialized world. It is reflected, in part, in the lack of national health insurance. So David Barton Smith begins this book, a book he describes as the story of “a divided nation, a divided health care system, and the uncompleted journey to heal both.”[1]

Most of us are not comfortable …

Aren't You Latino: Building Bridges Upon Common Misperceptions, Victor C. Romero

Faculty Scholarship

This article addresses minority on minority oppression and itragroup animosity. The author discusses ways in which communities of color can use common misperceptions to their advantage as a bridge to building a larger community.

The Inherent Limits Of Judicial Control Of Agency Discretion: The D.C. Circuit And The Nondelegation Doctrine, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The article discusses American Trucking Associations v EPA, in which a two-judge majority of a DC Circuit panel held that the section of the Clean Air Act that authorizes EPA to set primary air quality standards applicable to criteria pollutants is unconstitutional as interpreted by EPA. The court held the EPA interpretation unconstitutional because it provides no criteria for determining how much pollution is too much. The court remanded to allow EPA the opportunity to adopt a saving interpretation of the statute by adopting a binding determinate decision making standard that EPA and a court can apply to determine how …

Family Leave And The Gender Wage Gap, Michael Selmi

GW Law Faculty Publications & Other Works

In this article, I argue that the key to achieving greater gender equality in the workplace is finding a way to change the behavior of men with respect to the care of children. Until now, most suggestions have focused on changing the behavior of women or employers, but women continue to face significant disadvantages in the workplace despite substantial changes in their labor force behavior. In the first part of the article, I analyze the latest data and conclude that the gender pay gap reflects both women's actual labor market behavior, which still differs from men's, and employers' exaggerated responses …

The Case For Formalism In Relational Contract, Robert E. Scott

Faculty Scholarship

The distinguished scholars who gathered last year to honor Ian Macneil and to reflect on his contributions to the understanding of contract and contract law represent diverse methodologies, and they approach the vexing problems raised by relational contracts from different normative perspectives. But on one point, I daresay, they all agree: the central task in developing a plausible normative theory of contract law is to specify the appropriate role of the state in regulating incomplete contracts. Complete contracts (to the extent that they exist in the real world) are rarely, if ever, breached since by definition the payoffs for every …

Critical National Infrastructure, Philip C. Bobbitt

Faculty Scholarship

It's great to be home. I look out in this group. It may be the Philosophical Society, but it really looks to me like coming home. I see the Weinbergs, the Rostows. I went to law school because of Chris Dougherty. I have a "family" out here that I very seldom get to see, so it's a real rreac for me to be here.

For about a year and a half now, I've lived in Washington. If you visit Washington, a place you must go is the Library of Congress. And if you go to the Library of Congress, you …

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

Scholarly Works

Critical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise of critical theory failed to materialize. Today, Habermas plays the role of the aging lion who refuses to accept …

Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii

Scholarly Works

This Symposium brings the considerable talents of a diverse group of scholars to bear on a pressing problem in legal theory: Whether critical theory is possible after the hermeneutical turn. All too often, this problem is framed to invite an “either-or” response. Either we reject the hermeneutical turn and hew to a traditional account of critique anchored by an unimpeachable standard (whether economic, historical, conceptual, cognitive, or otherwise), or we take the hermeneutical turn by embracing radical historical contingency and fluidity, thereby forsaking the possibility of critique and surrendering to conservative conventionalism or inviting postmodern chaos. This Symposium challenges this …

Conserving Ecosystems Through The Secretarial Order On Tribal Rights, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.

Beyond Cloning: Expanding Reproductive Options For Same-Sex Couples, David Orentlicher

Scholarly Works

No abstract provided.

Why Lesbians And Gay Men Should Read Martha Fineman, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Legacy Of Geographical Morality And Colonialism: A Historical Assessment Of The Current Crusade Against Corruption, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

This Article examines the legacy of the rule of geographical morality - that is the norm by which a citizen of the country in the North may engage in acts of corruption in any country in the South, including bribery and extortion, without the attachment of any moral condemnation to those acts. Part I of the Article begins by reviewing the impeachment trial of Warren Hastings, who served as Governor General of the Bengal from 1772-1785, on charges of bribery and corruption. It was during that impeachment proceeding when the words "principles of geographical morality" were used by, the prosectuor, …

Laws Influencing Community-Based Conservation In Colorado And The American West: A Primer, University Of Colorado Boulder. Natural Resources Law Center

Books, Reports, and Studies

vi, 51 p.

Foundational Myths And The Reality Of Dependency: The Role Of Marriage, Ann Shalleck

Scholarly Articles in Law Reviews & Journals

No abstract provided.