Digital Commons Network^™

Commandeering The People: Why The Individual Health Insurance Mandate Is Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims.

First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of …

Attention Must Be Paid: Commercial Speech, User-Generated Ads, And The Challenge Of Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, …

An Autobiography Of A Digital Idea: From Waging War Against Laptops To Engaging Students With Laptops, Diana R. Donahoe

Georgetown Law Faculty Publications and Other Works

This is an autobiographical account of my attempt to bridge the digital divide to meet students' changing needs. When I first began teaching at Georgetown University Law Center in 1993, I employed many traditional teaching techniques and used printed textbooks. However, laptops soon began peppering my classroom; at first there were only a few, and then suddenly almost every student was hiding behind a laptop. I noticed that my students were looking down at their screens, typing furiously, instead of watching me while I discussed my material written on the blackboard or projected overhead. When I realized that I was …

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi Short, Michael W. Toffel

Georgetown Law Faculty Publications and Other Works

Using data from a sample of U.S. industrial facilities subject to the federal Clean Air Act from 1993 to 2003, this article theorizes and tests the conditions under which organizations’ symbolic commitments to self-regulate are particularly likely to result in improved compliance practices and outcomes. We argue that the legal environment, particularly as it is constructed by the enforcement activities of regulators, significantly influences the likelihood that organizations will effectively implement the self-regulatory commitments they symbolically adopt. We investigate how different enforcement tools can foster or undermine organizations’ normative motivations to self-regulate. We find that organizations are more likely to …

The Right To Bear Arms: A Uniquely American Entitlement, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In District of Columbia v. Heller the Supreme Court held that individuals have a constitutional right to own firearms, notably to keep a loaded handgun at home for self-protection. The historic shift announced by Heller was the recognition of a personal right, rather than a collective right tied to state militias. In McDonald v. Chicago, the Supreme Court – in a familiar 5-4 ideological split – held that the 2nd Amendment applies not only to the federal government, but also to state and local gun control laws. In his dissent, Justice Stevens predicted that “the consequences could prove far more …

Implementing Public Health Regulations In Developing Countries: Lessons From The Oecd Countries, Lawrence O. Gostin, Emily A. Mok, Monica Das Gupta, Max Levin

Georgetown Law Faculty Publications and Other Works

The enforcement of public health standards is a common problem in many developing countries. Public health agencies lack sufficient resources and, too often, enforcement mechanisms rely on slow and erratic judicial systems. These limitations can make traditional public health regulations difficult to implement. In this article, we examine innovative approaches to the implementation of public health regulations that have emerged in recent years within OECD countries. These approaches aim to improve compliance with health standards, while reducing dependence on both the legal system and the administrative resources of public health agencies.

This article begins by discussing some traditional forms of …

The Joint Action And Learning Initiative On National And Global Responsibilities For Health, Lawrence O. Gostin, Gorik Ooms, Mark Heywood, Just Haffeld, Sigrun Møgedal, John-Arne Røttingen, Eric A. Friedman, Harald Siem

Georgetown Law Faculty Publications and Other Works

A population’s health and wellbeing is primarily a national responsibility. Every state owes all of its inhabitants a comprehensive package of essential health goods and services under its obligations to respect, protect, and fulfill the human right to health. Yet health is also a global responsibility. Every state has a duty to ensure a safe and healthy world, with particular attention to the needs of the world’s poorest people. Improving health and reducing unconscionable health inequalities is both an international obligation under the human right to health and a matter of global social justice.

The mutual obligations of states to …

Rights Talk And Patient Subjectivity: The Role Of Autonomy, Equality And Participation Norms, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Patients themselves have transformed the role of the patient in the health care system, making it far more complex than it ever has been before. As a result, the conceptual root of our contemporary understandings of “patient” is an assumption of autonomous subjectivity, i.e., of an individual aware of and capable of acting on her choices for medical care. The Symposium on Patient-Centered Health Law and Ethics of which this Article is a part considers the most recent stage in this evolution of meanings: the concept of patient-centeredness, with its implication of provider deference to the patient’s perspective. Throughout the …

The Sacrificial Yoo: Accounting For Torture In The Opr Report, David Cole

Georgetown Law Faculty Publications and Other Works

When the Justice Department finally released the report of its Office of Professional Responsibility on the “torture memos,” recommending that the initial torture memo’s authors, John Yoo and Jay Bybee, be referred for bar discipline, John Yoo declared victory in op-eds in the Wall Street Journal and Philadelphia Inquirer. The report itself concluded that Yoo and Bybee had acted unethically, and quoted many of Yoo’s successors in office as condemning the memos as, among other things “slovenly,” “riddled with error,” and “insane.” But Yoo claimed victory because Associate Deputy Attorney General David Margolis vetoed its recommendation that he be referred …

Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

With the nomination of Elena Kagan to be a justice of the United States Supreme Court, it is quite possible that eight of the nine justices will have graduated from only two law schools—Harvard and Yale. This article frames this development in the historical context of the legal education of those justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently represented among …

Paradigm Shifts In International Justice And The Duty To Protect; In Search Of An Action Principle, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article places the emerging “responsibility to protect” within the historical development of international human rights and criminal law, while also attempting to more fully theorize the responsibility to ensure that it can be a basis for action in the face of a state’s commission of atrocities against its citizens. The main point of departure concerns the issue of “right authority” at that point in time when a coercive intervention is justified. Rather than rely solely on the Security Council in these situations, this article contends that unilateral and multilateral action must be countenanced by a fully theorized “responsibility to …

The Perils Of Empowerment, Jane H. Aiken, Katherine Goldwasser

Georgetown Law Faculty Publications and Other Works

This Article examines bystander norms of disinterest and blame that inform and undermine strategies for dealing with significant social problems such as domestic violence. Current strategies rely on individual “empowerment” to reduce such violence. These strategies reflect fundamental misconceptions and false assumptions about the nature of domestic violence, about why this sort of violence persists so stubbornly, and, ultimately, about what it takes to change behavior that has long been tolerated, if not actually fostered, as a result of deeply imbedded social and cultural norms. The net effect is that far from empowering abused women, let alone reaching the norms …

Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth

Georgetown Law Faculty Publications and Other Works

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …

Eliminating Trade Remedies From The Wto: Lessons From Regional Trade Agreements, Tania Voon

Georgetown Law Faculty Publications and Other Works

As the global financial crisis threatens to manifest in enhanced protectionism, the economic irrationality of dumping, countervailing, and global safeguard measures (so-called ‘trade remedies’) should be of increased concern to the Members of the World Trade Organization (‘WTO’). Long tolerated under the WTO agreements and perhaps a necessary evil to facilitate multilateral trade liberalisation, elimination of trade remedies is far from the agenda of WTO negotiators. However, a small number of regional trade agreements offer a model for reducing the use of trade remedies among WTO Members in the longer term, consistent with WTO rules and broader public international law.

Discourse, Identity, And Culture In Diverse Organizations: A Study Of The Muslim Students Association (University Of Montana), Burhanuddin Bin Omar

Graduate Student Theses, Dissertations, & Professional Papers

This study examined the relationship between discourse, identity and culture within the diverse membership of the Muslim Students Association, University of Montana. Previous organizational identity research has discussed how identity is fluid, how identity regulation occurs between the organization and membership, and that identity is formed through discourses. Additionally, the literature also shows us how these identity influencing discourses are themselves influenced by culture. This study expands the literature through an exploration of the identity formation of organizational members who share Islam as a religion within a culturally diverse MSA. This study utilizes a poststructuralist lens to explore the discursive …

Constructing Adequate Language Documentation For Multifaceted Cross-Linguistic Data: A Case Study From The Virtual Center For Study Of Language Acquisition, Barbara Lust, Suzanne Flynn, María Blume, Elaine L. Westbrooks

University of Nebraska-Lincoln Libraries: Faculty Publications

This paper confronts the challenge of constructing language documentation and data management in the face of continually expanding sets of crosslinguistic multi-media data arising in collaborative language acquisition research. It describes the development of an infrastructure and methods for creating and managing such shared language data across a Virtual Center for Language Acquisition(VCLA) by fostering collaborative scientific research in the language sciences across multiple institutions. The infrastructure reflects a research lab/academic library collaboration that integrates metadata organization in research methods. This paper describes both the research and educational components involved in the development of the VCLA

学術機関リポジトリでのオリジナルコンテンツの公開, Paul Royster

University of Nebraska-Lincoln Libraries: Faculty Publications

学術機関リポジトリ（Institutional Repository、IR）は主に、学術雑誌、記念論文集、論文集など、他の場所で公開済みの学術的コンテンツを再公開する手段として開発され促進されてきた。本書では、他ではまだ公開していない資料の最初の公開場所にIRを使用する方法について考察し、学術的公開のための発展性のある「第一手段」として、また従来の商業出版社または大学出版局の代わりとなる既存の手段としてIRを利用できる可能性を評価する。Serials Review 2008; 34:27-30. Translation courtesy of Library Liaison Team, National Institute of Informatics, Japan, Cyber Science Infrastructure Development Department, Scholarly and Academic Information Division.

Mulieris Dignitatem: Pornography And The Dignity Of The Soul - An Exploration Of Dignity In A Protected Speech Paradigm, Mary Graw Leary

Scholarly Articles

This article, part of a symposium celebrating the 20th anniversary of Mulieris Dignitatem, reflects on Mulieris Dignitatem’s teachings, and how they can inform the issue of pornography. Modern day pornography has increased in both its quantity and severity of content. Mulieris Dignitatem offers a pathway out of this reality with its focus on the concept of dignity. The article reviews John Paul II’s emphasis on the dignity of woman and applies it to the modern day issue of pornography. The article suggests a paradigm shift from examining pornography solely through a speech and expression lens to examining the issue through …

Women In Antebellum Alachua County, Florida, Herbert Joseph O'Shields

UNF Graduate Theses and Dissertations

The purpose of this study was to investigate the role and status of women in Alachua County, Florida, from 1821 through 1860. The secondary literature suggests that women throughout America had virtually no public role to play in antebellum society except in limited circumstances in some mature urban, commercial settings. The study reviewed U.S. Census materials, slave ownership records, and land ownership records as a means to examine the family structures, the mobility and persistence of persons and households, and the economic status of women, particularly including woman headed households. The study also examined laws adopted by the Florida legislative …

Leisure And Aging: A Content Analysis Of Leisure Textbooks And Leisure Academic Journal Articles, Leila Rod-Welch

Dissertations and Theses @ UNI

This study will review literature related to leisure and aging. We live in an aging society. People are expected to live healthier and longer. Therefore, there is a need to analyze how older adults are portrayed in leisure textbooks and academic journal articles which are typically used to educate and train recreation professionals. This study explores whether leisure textbooks published in the United States addressed the topic of aging and, if so, to what extent. In addition, any differences between leisure textbooks and specialty leisure and aging textbooks were analyzed. A content analysis of 54 leisure textbooks from six U.S. …

Conflicting Identities And Ideologies: A Rhetorical Analysis Of The National Japanese American Memorial To Patriotism During World War Ii, Kaori Yamada

Dissertations and Theses @ UNI

This thesis is a rhetorical criticism of the National Japanese American Memorial to Patriotism During World War II, located in Washington, D.C. It was erected on November 9, 2000, to memorialize Japanese Americans who were forced to move to the relocation camps and Japanese American soldiers who died as members of the U.S. armed forces during WWII. Examining the intended meaning of the Memorial by its creators is not a central focus of this study. Rather, I investigate how interactions among the rhetoric of the Memorial, social contexts, and audiences create multiple meanings.

The first analytic focus is the symbolic …

Obscenity And Pornography: A Historical Look At The American Library Association, The Commission On Obscenity And Pornography, And The Supreme Court, Gretchen Brooke Gould

Dissertations and Theses @ UNI

There was a time when accessing pornographic and obscene materials was much more difficult than it is today. Prosecuted in 1868, Regina v. Hicklin was the first known obscenity case tried under the Obscene Publications Act in Great Britain. The United States Supreme Court first addressed obscenity in the 1957 case of Roth v. United States and grappled with setting standards or creating criteria by which obscenity could be defined. In the 1960s, multiple proposals for federal legislation to crack down on obscenity were offered. The American Library Association (ALA) stepped in to voice its concern and provide professional input …

Sexting Or Self-Produced Child Pornography – The Dialogue Continues – Structured Prosecutorial Discretion Within A Multidisciplinary Response, Mary Graw Leary

Scholarly Articles

One need only read the newspaper to see a rising dangerous phenomenon among juveniles: the creation and subsequent sharing via the Internet of sexually explicit photographs. This self exploitation is not only a tragic social problem, but a growing legal one as well. Judges, attorneys, and legislators, are forced to address this activity because, in addition to being self destructive, it is also a violation of state and federal child pornography laws. Juvenile self exploitation illustrates a clash of two lines of jurisprudence and public policy: the aggressive opposition to child pornography and the more lenient rehabilitative treatment of juvenile …

A Non-Fatal Collision: Where Religious Land Uses And Community Interests Meet, Adam J. Macleod

Scholarly Articles

This paper grapples with the question how best to interpret the Religious Land Use and Institutionalized Persons Act, which creates a prophylactic remedy in favor of religious land users burdened by local land use regulations. Where the burden on religious exercise is substantial, RLUIPA subjects the regulation to strict scrutiny review. Several scholars object to RLUIPA on the grounds that it violates principles of federalism and equality between religious and non-religious landowners. Other scholars make the case for an expansive RLUIPA on the ground that the First Amendment privileges religious exercise over other types of land use.

This article first …

Body Type And Perceived Physical Competence In College Female Dancers, Brenna Marie Vogel

Dissertations and Theses @ UNI

The relationship between body type and perceived physical competence was determined among college female company dancers. Participants were from one of four technique based dance companies at a midwestern university. They were questioned as to their perceived physical competence in seven different styles of dance, all of which had been offered at the selected university over the previous academic year. Body type was calculated using both the Body Mass Index Scale and the Body Composition Analyzer, which is a bioelectrical impedance analysis of one's body fat percentage, total body water, and body weight. A total of 44 participants took part …

Characterization Of The Corrosion Protection Mechanism Of Cerium-Based Conversion Coatings On High Strength Aluminum Alloys, William R. Pinc

Doctoral Dissertations

"The aim of the work presented in this dissertation is to investigate the corrosion protection mechanism of cerium-based conversion coatings ( CeCCs) used in the corrosion protection of high strength aluminum alloys. The corrosion resistance of CeCCs involves two general mechanisms; barrier and active. The barrier protection mechanism was influenced by processing parameters, specifically surface preparation, post-treatment, and the use of gelatin. Post-treatment and the addition of gelatin to the coating solution resulted in fewer cracks and transformation of the coating to CeP0₄, which increased the corrosion resistance by improving the barrier aspect of CeCCs. CeCCs were found to best …

Development Of Embedded Modulated Scatterer Technique: Single- And Dual-Loaded Scatterers, Kristen M. Donnell

Doctoral Dissertations

"Health monitoring of infrastructure is an important ongoing issue. Therefore, it is important that a cost-effective and practical method for evaluating complex composite structures be developed. A promising microwave-based embedded sensor technology is developed based on the Modulated Scatterer Technique (MST). MST is based on illuminating a probe, commonly a dipole antenna loaded with a PIN diode (also referred to as a single-loaded scatterer, or SLS), with an electromagnetic wave. This impinging wave induces a current along the scatterer length, which causes a scattered field to be reradiated. Modulating the PIN diode also modulates the signal scattered by the probe, …

A Study Of The Growth And Structure Of Chromium And Iron Oxide Films On Pd(001) Using X-Ray Photoelectron Diffraction And Low Energy Electron Diffraction, Tina Dhekial-Phukan

Doctoral Dissertations

"In this study, attempts were made to grow well-ordered chromium- and iron-oxide films on a Pd(001) surface, and two sample preparation techniques, the multilayer and the sequential growth techniques, were used to grow these transition metal oxide films. The study is a part of a larger project that aims to look into the interaction between metal substrates and the overlayers grown on them. Previous studies of oxide films on Ag(001) resulted in the growth of 4-fold and 3-fold symmetry oxide structures from the multilayer and sequential growth techniques respectively. The present investigation's goal was to study how the growth of …

Integration Mechanisms For Heading Perception, Elif M. Sikoglu, Finnegan J. Calabro, Scott A. Beardsley, Lucia M. Vaina

Biomedical Engineering Faculty Research and Publications

Previous studies of heading perception suggest that human observers employ spatiotemporal pooling to accommodate noise in optic flow stimuli. Here, we investigated how spatial and temporal integration mechanisms are used for judgments of heading through a psychophysical experiment involving three different types of noise. Furthermore, we developed two ideal observer models to study the components of the spatial information used by observers when performing the heading task. In the psychophysical experiment, we applied three types of direction noise to optic flow stimuli to differentiate the involvement of spatial and temporal integration mechanisms. The results indicate that temporal integration mechanisms play …

A Study In Law And Literature: Themes Of Exceptionalism And Equity In British And American Culture, William J. Wagner

Scholarly Articles

The advent of a new scale of international terrorism on September 11, 2001 posed a case for moral and legal evaluation that appeared to some in the global community to evade the reach of received rules or principles of moral or political action. The perceived threat and a certain sense by some governmental actors to an entitlement of latitude in response seemed to sever the situation from rules and principles in a depth dimension of consciousness. For many, the case's enormity overwhelmed its abstract moral definition. The foreign policy response of the United States-the country which had been attacked-further reinforced …