Digital Commons Network^™

Introduction To Keynote Address: A Community Of Reason And Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Introduction to the Keynote Address: A Community of Reason and Rights, delivered on October 4, 2007 at Fordham University School of Law.

The Ada Amendments Act Of 2008, Chai R. Feldblum, Kevin Barry, Emily A. Benfer

Georgetown Law Faculty Publications and Other Works

The goal of the Americans with Disabilities Act (ADA) was to create a civil rights law protecting people with disabilities from discrimination on the basis of their disabilities. Disability rights advocates in 1990 were victorious in their efforts to open doors for people with disabilities and to change the country's outlook and acceptance of people with disabilities. These advocates believed that the terms of the ADA, based as they were on Section 504 of the Rehabilitation Act, combined with the legislative history of the ADA, would provide clear instructions to the courts that the ADA was intended to provide broad …

Corporate Social Responsibility Of Multinational Enterprises And The International Business Law Curriculum, Constance Z. Wagner

All Faculty Scholarship

The author argues for expanded coverage of corporate social responsibility in the U.S. law school curriculum. Corporate social responsibility is of increasing importance for businesses, particularly for those companies that conduct multinational operations. Current national legal and regulatory regimes fail to adequately address the social and environmental issues that arise in business operations. As a result, intergovernmental organizations, non-governmental organizations and businesses have begun to promulgate voluntary codes ofconduct. These codes touch on such subjects as core labor standards, environmental protection, bribery offoreign government officials in international business and human rights. Examples include the Organization for Economic Cooperation and Development …

Mother Jones Meets Gordon Gekko: The Complicated Relationship Between Labor And Private Equity, Matthew T. Bodie

All Faculty Scholarship

In 2007 private equity firms came under increasing scrutiny for the favorable tax treatment accorded to their fund managers' compensation. Labor, particularly the Service Workers International Union (SEIU), was instrumental in bringing this issue to the attention of the media and the public. However, SEIU's private equity campaign is just one way in which the union is pursuing its primary concern: increasing the ranks of its members. This Article examines the role that the SEIU private equity campaign plays both in the overall debate about private equity taxation as well as the union's negotiations with private equity firms. It argues …

The Public Face Of Presumptions, Karen Petroski

All Faculty Scholarship

We commonly think of presumptions as second-best inferential tools allowing us to reach conclusions, if we must, under conditions of limited information. Scholarship on the topic across the disciplines has espoused a common conception of presumptions that defines them according to their function within the decisionmaking process. This focus on the “private” face of presumptions has generated a predominantly critical and grudging view of them, perpetuated certain conceptual ambiguities, and, most important, neglected the fact that what we refer to as “presumptions” have distinguishing features other than the defeasibility and burden-shifting effects associated with their use as inferential tools. When …

Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Y. Barnes, David L. Sloss, Stephen C. Thaman

All Faculty Scholarship

This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser …

The Two Faces Of Justice In The Post-Soviet Legal Sphere: Adversarial Procedure, Jury Trial, Plea-Bargaining And The Inquisitorial Legacy, Stephen C. Thaman

All Faculty Scholarship

This essay focuses on adversary procedure, plea-bargaining, and jury trial in the 1991 Concept of Judicial Reform of the Russian Republic. It discusses the impact of these reforms and assesses whether they have led to an improvement in the quality of evidence presented to the trier of fact, liberation of the trial and appellate judges from the juggernaut of hierarchical Soviet ‘crime control’ policies, and the development of a culture where acquittals of guilty and innocent will be tolerated when the evidence lacks credibility or is insufficient to constitute proof beyond a reasonable doubt.

Jury Trial And Adversary Procedure In Russia: Reform Of Soviet Inquisitorial Procedure Or Democratic Window-Dressing?, Stephen C. Thaman

All Faculty Scholarship

A new adversary system of jury trial was introduced in 1993-1994, and the rights to jury trial, adversary procedure, the presumption of innocence, and the mandatory exclusion of illegally gathered evidence were incorporated into the new Constitution of the Russian Federation in December of 1993. The new Criminal Procedure Code of the Russian Federation, passed in December 2001, led to the extension of jury trial to the entire country with the exception of the Republic of Chechnia in 2003-2004.

This chapter explores the extent to which the Russian jury system and adversary procedure have humanized criminal procedure, and concludes that …

Socioeconomic Disparities In Health: A Symposium On The Relationships Between Poverty And Health, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The disparities in health between the rich and poor are so striking, and the results so dire, that reducing the gap is an ethical imperative.

A strong and consistent finding of epidemiological research is that socioeconomic status (SES) is correlated with morbidity, mortality, and functioning. SES is a complex combination of income, education, and occupation. Theorists posit that material disadvantage, diminished control over life's circumstances, and lack of social acceptance all contribute to poor health outcomes. The relationship between SES and health often is referred to as a "gradient" because of the graded and continuous nature of the association; health …

National And Global Health Law: A Scholarly Examination Of The Most Pressing Health Hazards, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The health of individuals, families, and communities has deep, intuitive meaning. So much of what we aspire to be as individuals or as members of society relies on health. Our shared intuitions about the value of health manifest themselves in public and political concerns. The media widely reports threats to the public's health, such as a traveler with multi-drug resistant tuberculosis, E-coli from contaminated spinach, miners' deaths, unsafe children's toys, and dangerous pharmaceuticals. Election years predictably spur new, or refashioned, proposals for health care reform. And there remain enduring, intractable health hazards, such as tobacco, obesity, motor vehicle crashes, and …

Tax Fairness, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article argues that, contrary to the consensus of economists and many legal scholars, the norm of "horizontal equity" in taxation has independent meaning as a default rule in favor of existing arrangements. Although it has long been said, and widely thought, that tax should be fair in its dealings with individuals who are situated similarly to one another, no one has been able to say convincingly just what that fairness comprises. As a result, the learned referees in the last major dispute over the significance of horizontal equity judged that fairness's critic had decidedly won the day. Since then, …

Domestic Bonds, Credit Derivatives, And The Next Transformation Of Sovereign Debt, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Not long ago, financial markets in most poor and middle-income countries were shallow to nonexistent, and closed to foreigners. Governments often had to rely on risky borrowing abroad; the private sector had even fewer options. But between 1995 and 2005, domestic debt in the emerging markets grew from $1 trillion to $4 trillion. In Mexico, domestic debt went from just over 20% of the total government debt stock in 1995 to nearly 80% in 2007. Foreign and local investors are buying. Over the same period, derivative contracts to transfer emerging market credit risk surpassed the market capitalization of the benchmark …

Improving Immigration Adjudications Through Competent Counsel, Andrew I. Schoenholtz, Hamutal Bernstein

Georgetown Law Faculty Publications and Other Works

The immigration adjudication system in the United States is in serious need of reform. While much attention has focused on one of the principal adjudicators, the Immigration Judges, recent research conducted by Philip Schrag, Jaya Ramji-Nogales, and Andrew Schoenholtz has shown that policymakers and adjudicators should be examining all levels of decision making. This includes not only decisions at the Immigration Court level but also at the Asylum Office, the Board of Immigration Appeals and the Circuit Courts. In Refugee Roulette: Disparities in Asylum Adjudication, the authors found a troubling degree of inconsistency at all levels that track individual …

Access Assured: Restoring Progressivity In The Tax And Spending Programs For Higher Education, Kerry A. Ryan

All Faculty Scholarship

Presently, the federal government subsidizes the higher education expenses of individual college students through two distribution channels: the tax system and the transfer system. Under each subsystem, there are a multitude of programs available to assist students in meeting their postsecondary educational expenses. The proliferation of so many forms of federal student aid raises issues of intra- and inter-program effectiveness. In their current form, the tax benefits for higher education do not get the right amount to the right people at the right time. The federal college spending programs, on the other hand, get the right amount to the right …

Irregular Panels, Samuel P. Jordan

All Faculty Scholarship

This article explores a common but essentially unexplored feature of appellate decision-making: decisions by irregular panels. Decisions in the federal courts of appeals are usually reached by panels of three statutorily authorized judges. But appellate panels are often irregular in practice, either because an authorized judge becomes unavailable or because an unauthorized judge is assigned as a panel member. The traditional approach, supported by both statute and case law, has been to accept the former while rejecting the latter. When considered functionally, however, decisions by quorum are at least as problematic as those by panels with unauthorized members. The absence …

Demystifying Hedge Funds: A Design Primer, Henry Ordower

All Faculty Scholarship

Describes and analyzes hedge fund structures in the context of the United States statutes and regulations that inform those structures.

A Better Approach For Balancing Authority And Accountability In Shareholder Derivative Litigation, Ann M. Scarlett

All Faculty Scholarship

Corporations present an interesting illustration of the authority versus accountability dilemma. Shareholders elect the directors of the corporation and the law vests those directors with almost unlimited authority to manage the corporation. Yet, shareholders have few effective means for holding directors accountable for their decisions other than through shareholder derivative litigation. In such litigation, the business judgment rule serves as the mechanism by which courts attempt to balance directors' authority to make decisions for the corporation against shareholders' right to hold directors accountable for those decisions.

As this Article discusses, numerous theories exist as to the proper formulation of the …

Confusion And Unpredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann M. Scarlett

All Faculty Scholarship

The Delaware courts responded to the recent wave of corporate scandals, exemplified by Enron and WorldCom, by changing their approach to shareholder derivative litigation. This Article analyzes the Delaware courts' response to these scandals and concludes that the courts have created doctrinal confusion and introduced unpredictability into derivative litigation. This Article also analyzes the future negative consequences for shareholders, corporations, directors, investors, and other litigants. Finally, this Article proposes improvements for derivative litigation that may alleviate the confusion and unpredictability created by the Delaware courts' response to the recent scandals.

Not Hearing History: A Critique Of Chief Justice Robert’S Reinterpretation Of Brown, Joel K. Goldstein

All Faculty Scholarship

In the principal opinion in Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts invoked Brown v. Board of Education to bolster his view that the United States Constitution forbids the use of virtually all racial classifications. In its closing paragraphs, the plurality opinion claimed that the NAACP attorneys in Brown subscribed to an anticlassification view of the Constitution and that the Court adopted that view. Far from hearing history, the Chief Justice’s opinion sought to rewrite it. The discussion ignored the historic context in which Brown was argued and based its argument on extracting …

Bridging The Theoretical Gap: The Diasporized Hybrid In Sociological Theory, Melissa F. Weiner, Bedelia N. Richards

Sociology and Anthropology Faculty Publications

In a nation of immigrants, most American ethnic groups have at some point wrestled with how to reconcile having an identity that is rooted simultaneously in their countries of origin and in the United States, particularly when they are also racialized ethnic minorities. This hybrid identity often blends divergent cultures and traditions. And sociologists, intent on explaining these tensions, have focused on the experiences that have shaped these identities for over a century. As a result, the theoretical roots of contemporary hybridity theories such as the segmented assimilation perspective, can be traced back to “classical” theorists of race, pluralism, and …

Review Of Jonathan Baron, Against Bioethics, Chad Flanders

All Faculty Scholarship

This is a short review of a recent book by Jonathan Baron, entitled "Against Bioethics."

The Possibility Of A Secular First Amendment, Chad Flanders

All Faculty Scholarship

In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is …

Early Intervention, Research And Therapy Center For Children With Autism, Nicole Marie Caccavo

Theses and Dissertations

This book documents a design study and creative project undertaken toward the fulfillment of a Masters of Fine Arts Degree in Interior Environments at Virginia Commonwealth University in Richmond, Virginia. This book documents a year long accumulation of study and research done toward the development of an early intervention, therapy and research center for children with autism. This creative project demonstrates how an environment can be a catalyst for social interaction, way finding, therapy, and intervention. The goal was to design a space that would be multi-functional and also benefit the surrounding community. This design study will explain how colors …

Frontal Plane Pelvic Drop In Runners: Causes And Clinical Implications, Evie Neff Burnet

Theses and Dissertations

Running is becoming an increasingly popular sport; however, runners have a high rate of injury and are therefore often treated in the orthopedic or sports medicine setting. One current focus of these patients' treatment is gluteus medius muscle (GM) strengthening and gait retraining, with the goal of decreasing frontal plane pelvic drop. Unfortunately, there is a research void assessing the role of GM function on pelvic drop, and the effect of an increased pelvic drop on running performance. The specific aims of this research were to investigate a link between frontal plane pelvic drop and (1) isometric GM torque, (2) …

A Comparison Of Five Radiographic Systems To D-Speed Film In The Detection Of Artificial Bone Lesions, David Lloyd Hadley

Theses and Dissertations

The purpose of this study was to compare three direct digital sensors (Kodak 6100, Schick CDR, and Dexis PerfectSize), a phosphor plate system (OpTime), and F-speed film to standard D-speed film in the detection of artificial bone lesions prepared in mandible bone sections. Multiple artificial bone lesions were prepared at varying depths in the cortical bone. Specimens were imaged with six different radiographic systems. Radiographs were randomly presented to nine different observers. A logistic regression analysis indicated that the ability of the different radiographic systems to detect the bone lesions was significantly different at the mean percentage of cortical bone …

Des Perdues: The Precariousness Of Loss, Alissa Grace Davis

Theses and Dissertations

The majority of losses that take place in a day are not large, or sad, they are built almost entirely on behaviors and systems that have nothing to do with loss. Most of these, I discovered, are the result of deliberate carelessness. The word loss is as difficult to define as truth, but its variation is what makes it so interesting and evocative. It is not, and never has been, a definition of loss that I seek: it is not enough to simply say I lost this person or that place, we must consider what is left and what can …

Informal Caregivers Of Advanced Cancer Patients: The Impact Of Geographic Proximity On Social Support And Bereavement Adjustment, John Garland Cagle

Theses and Dissertations

This research explored the social and psychological needs of caregivers of advanced cancer patients, and their subsequent bereavement adjustment. The study focuses exclusively on informal caregivers who provide assistance to patients receiving hospice care for end-stage cancer. Those individuals living furthest from the dying care recipient, the long distance caregivers, were of particular interest. This study used a prospective design to explore how a caregiver's geographic proximity impacted their social support and bereavement adjustment. A 2 x 3 repeated measures design was used to gather data from caregivers before a patient's death (using a pre-death questionnaire) as well as after …

Creating A Realistic Set Design For Doubt: A Parable, Philip Avery Hayes

Theses and Dissertations

This thesis is a narrative describing the set design for the Richmond premiere of Doubt: A Parable by John Patrick Shanley. The project was a creation of a set to be used by the Barksdale Theatre in Richmond, Virginia. The performance was held in February 15, 2008 through March 22, 2008 at the Barksdale Theatre in Richmond, Virginia. The production was a cooperation between the Virginia Commonwealth University Theatre Department and the Barksdale Theatre Inc.

Faith-Based Organizations And Legislative Advocacy: A Qualitative Inquiry, M. Lori Thomas

Theses and Dissertations

Since the early 1990s, religion and matters of faith and spirituality have become a focal point in numerous arenas beyond the individual and traditionally sacred. With President George W. Bush's White House Office of Faith-Based and Community Initiatives of 2001, the Charitable Choice provision of the Personal Responsibility and Work Opportunity Reconciliation Act that preceded it in 1996, and the myriad of legal challenges that followed, matters of religion have become paramount in political discourse regarding social welfare. The viability of faith-based social service provision and the organizations providing the direct services have been the focus of speculation, debate, and …

Self-Appraisals, Perfectionism, And Academics In College Undergraduates, David Edward Canter

Theses and Dissertations

The influences on perfectionism and procrastination of race, gender, cognitive-affective and academic self-appraisals, and academic performance expectations were studied. The sample consisted of 155 Introductory Psychology students (57 African Americans, 41 Asian Americans, and 57 European Americans; 51.6% women) with a mean age of 19.4 years (SD = 3.6). Data were collected during the final week of the Fall 2007 semester. Consistent with previous research indicating that men are more likely to procrastinate than women, men were over-represented in this sample. Self-esteem, measured with the Rosenberg (1965) Self-Esteem Scale, was conceptualized as having two components: self-liking and self-competence (Tafarodi & …