Law Commons^™

Conflicting Visions: A Critique Of Ian Macneil’S Relational Theory Of Contract, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Perhaps the leading contemporary critic of placing consent at the center of contract law has been Ian Macneil. In his book The New Social Contract as well as in a series of complex and richly textured articles spanning nearly two decades, Macneil has eloquently presented and defended his now well-known relational theory of contract. It is a tribute to the important core of previously neglected truth in Macneil's theory that, for all its complexity, the theory can be summarized succinctly.

Macneil presents nothing less than a "holistic" "social theory" of human exchange--with particular emphasis on the human activity of "projecting …

The "Gag Rule" Revisited: Physicians As Abortion Gatekeepers, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court's announced truce, an elaboration on Justice O'Connor's "undue burden" idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seems …

Reconstructing Liberty, Robin West

Georgetown Law Faculty Publications and Other Works

It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible, consistent with a like amount of liberty given to others, the duty and right of the community to establish the conditions for a moral and secure collective life, and the responsibility of the state to provide for the common defense of the community against outside aggression. Our distinctive cultural and constitutional commitment to individual liberty places very real restraints on what our elected representatives can do, even …

Treaty-Based Rights And Remedies Of Individuals, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the "supreme Law of the Land" and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. …

Marital Exits And Marital Expectations In Nineteenth Century America, Hendrik A. Hartog

Philip A. Hart Memorial Lecture

On April 10, 1991, Professor of Law, Hendrik A. Hartog of the University of Wisconsin Law School, delivered the Georgetown Law Center’s eleventh Annual Philip A. Hart Memorial Lecture: "Meanings of Marriage: The Structure of Marital Expectations in Nineteenth Century America."

Hendrik Hartog is the Class of 1921 Bicentennial Professor of the History of American Law and Liberty at Princeton University. He holds a PhD. in the History of American Civilization from Brandeis University (1982), a J.D. from the New York University School of Law (1973), and an A.B. from Carleton College (1970). Before coming to Princeton, he taught at …

The Hiv Positive Health Care Clinician: Rights, Obligations, And The Academy, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

The questions raised by a case of an HIV positive student-clinician in an acupuncture school provide an analytical framework for considering the many conflicts raised by HIV positive health care providers in general. A number of conflicting social values are discussed in the context of federal and Maryland state law. HIV positive people are protected by certain antidiscrimination laws, provided they do not pose a significant risk of transmission. This protection must be balanced against the rights of patients to informed consent, the relative risk of a relatively noninvasive procedure such as acupuncture, and the academic freedom of the school …

Advance Directives Under State Law And Judicial Decisions (Medical Decision-Making And The ‛Right To Die’ After Cruzan), Judith C. Areen

Georgetown Law Faculty Publications and Other Works

In the decision of the United States Supreme Court in Cruzan v. Director, Missouri Department of Health on June 25, 1990, a majority of the Court announced that it will leave to the states the question of what legal requirements may be imposed on decisions to discontinue treatment for incompetent patients.

Almost every state now recognizes some form of written advance directive, be it living wills or appointments of proxy decision-makers. The problem with directives is thus increasingly not legal as much as it is practical: very few people prepare advance directives.

Toward An Abolitionist Interpretation Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are deeply and, in a sense, hopelessly conflicted. The conflict, simply stated, is this: to the current Supreme Court, and to a sizeable and influential number of constitutional theorists, the "equal protection of the laws" guaranteed by the Constitution is essentially a guarantee that the categories delineated by legal rules will be "rational" and will be rationally related to legitimate state ends. To …

Genetic Discrimination: The Use Of Genetically Based Diagnostic And Prognostic Tests By Employers And Insurers, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This paper analyzes the law, ethics and public policy concerning "genetic discrimination," defined as the denial of rights, privileges or opportunities on the basis of information obtained from genetically based diagnostic and prognostic tests. The Human Genome Initiative will enhance the ability to gather and organize information that may predict a person's future potential and disabilities. Enormous human benefits may ensue from understanding the etiology and pathophysiology of genetic disorders, including disease prevention through genetic counseling, and treatment of the disorders through genetic manipulation. This information will help clinicians understand and eventually treat many of the more than 4,000 diseases …

Judge (A Tribute To Judge Frank M. Coffin), J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Becoming Judge Coffin's law clerk must be the most fortunate of conclusions to a legal education. His judicial craftsmanship sets a standard for thoughtful professionalism that a young lawyer can never outgrow. In those salt-scented and book-lined chambers, briefs were painstakingly and critically read, precedents and statutes honestly interpreted and challenged to yield just results, opinions written and rewritten to convey the significance of a small distinction or the applicability of a large principle.

Racial Insults And Free Speech Within The University, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This article examines the constitutionality of university prohibitions of public expression that insults members of the academic community by directing hatred or contempt toward them on account of their race. Several thoughtful scholars have examined generally whether the government can penalize citizens for racist slurs under the first amendment, but to the limited extent that they have discussed university disciplinary codes they have assumed that the state university is merely a government instrumentality subject to the same constitutional limitations as, for example, the legislature or the police. In contrast, I argue that the university has a fundamentally different relationship to …

The North Atlantic Treaty And European Security After The Cold War, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

The recent dramatic events in Europe, notably the reunification of Germany, the collapse of Communist rule in Eastern Europe and the Soviet Union, the start of Soviet troop withdrawals, and the demise of the Warsaw Pact, represent an historic political triumph for the countries of the North Atlantic Alliance. At the same time, these developments have called into question the Alliance's continued relevance in a radically new environment.

The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West

Georgetown Law Faculty Publications and Other Works

What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H. v. Gerald D. Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action. Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions. I will sometimes call this the "traditionalist" interpretation of liberty. Justice Brennan, …

An Alternative Public Health Vision For A National Drug Strategy: "Treatment Works", Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article returns to a war waged virtually throughout this century--a war between the theories of punishment and rehabilitation in curtailing the drug epidemic. Today, the terms of the war are recast as supply-side policies based upon law enforcement; destroying crops in source countries; interdiction and increased sentencing; and demand reduction based upon prevention, education, and treatment. The war on drugs has reached a feverish pitch. New policies and statutes have tightened the grip of supply-side policies, with images of battle and hate mongering which go beyond the vilified drug lords and governments which harbor them, to the middle men, …

Federal Wetlands Regulatory Policy: Up To Its Ears In Alligators, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Protecting the nation's dwindling wetland resources under section 404 of the Clean Water Act has been a persistent and discouraging proposition. Section 404 of the Act "lies like an open wound across the body of environmental law." Given the ecological and economic value of the resource, this seems puzzling--but only for a moment. An examination of the federal wetlands permitting program reveals significant problems. These problems, combined with ingrained attitudes about the sanctity of private property, lack of public appreciation of wetland values, and insufficient political will to protect them, make it easy to see why wetlands continue to disappear, …

Carrying A Big Carrot: Linking Multilateral Disarmament And Development Assistance, David A. Koplow, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This article proposes, as a new element of the "liberal internationalism" that should characterize the post-Cold War world, a simultaneous solution to these three problems. The nations of the world should negotiate a series of multilateral agreements to stop the spread of advanced weaponry, and include in each of them, as an overt incentive for developing states to accept the disarmament and verification obligations, provisions that explicitly require the affluent, developed states to make specified monetary and in-kind transfers to the third world parties. The new regime should also provide stronger-than-customary treaty procedures for clarifying ambiguities, adjudicating claims, and resolving …

The Interconnected Epidemics Of Drug Dependency And Aids, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Drug dependence and human immunodeficiency virus (HIV) are America's two most pressing epidemics, interconnected by a cycle of urban poverty, physical dependence and a culture of sharing needles and syringes. Extant political strategies to curb these interconnected epidemics involve two traditional approaches. The first--law enforcement and interdiction--is designed to limit the supply of illicit drugs to the marketplace. This strategy is advanced by broad criminal sanctions against importing, selling, distributing, medically prescribing, or possessing illicit drugs or drug paraphernalia. The second strategy to combat the drug and HIV epidemics involves reducing the demand for illicit drugs. Education, counseling, and treatment …

Back To The Future And Up To The Sky: Legal Implications Of ‘Open Skies’ Inspection For Arms Control, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The United States, the Soviet Union, and their respective allies are currently engaged in the negotiation of a new arms control agreement on "Open Skies," reviving a failed concept from the 1950s. The treaty would permit each country to overfly the others on short notice and with great frequency, and to use diverse, sophisticated sensors to photograph key military and defense-related installations. This type of mutual intelligencegathering arrangement offers great advantages for national security and global stability, reducing the possibility of surprise attack and accordingly mitigating the necessity for maintaining large, offsetting military deployments. At the same time, however, the …

The Tragedy Of Distrust In The Implementation Of Federal Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The need to reduce dramatically the strain we place on the natural environment is simultaneously immediate and long-term. Our domestic laws reflect that understanding and express a symbolic commitment to that goal. Those laws have achieved, moreover, significant improvement in discrete areas and, in some others, have managed to resist further environmental degradation in the face of a growing economy. For that reason, they warrant great praise. The past twenty years nevertheless reveal that those same laws decline to undertake the concomitant modification of our governmental institutions, and the way we think about them, which is necessary for a fuller …

Ethical Principles For The Conduct Of Human Subject Research: Population-Based Research And Ethics, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This paper provides a halting first step in organizing a set of ethical guidelines for the conduct of population-based research, surveillance and practice. These principles are not distinct from, but an expansion of, traditional ethics. Research ethics, which matured significantly from the Nuremberg Code through to the Helsinki IV and the Council for International Organizations of Medical Sciences (CIOMS) guidelines, nourished the individual human spirit. Ethical principles should have a similarly profound impact in the development of science and the protection of human populations in the 1990s and beyond.

Unenumerated Constitutional Rights And The Rule Of Law, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The rule of law has long been one of the mainstays of liberal thought. John Locke cited its absence--not the absence of rights, which Locke thought existed in the state of nature--as the first reason for forming a government. Essentially, the rule of law says that the requirements of justice must take a form such that persons can know what justice requires of them before they act and can detect abuses by those charged with law enforcement. If the formal and procedural requirements of the rule of law are adhered to, those "good" persons who seek to act properly can …

Green Property, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This essay begins an effort to imagine legal principles that further ecological values and to criticize extant principles that embody the antithetical values of exploitation and consumption. I will focus on the transformation of property law inherent in adopting an environmentally sustainable land use program.

Book Review: Deforming Tort Reform, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

The storms buffeting the tort system over the past two decades have come in three distinct waves. In the late 1960s, steep increases in the insurance costs incurred by health care providers protecting against negligence claims by patients triggered what came to be known as the "medical malpractice crisis." In the mid-1970s, manufacturers whose liability insurance premiums suddenly soared raised obstreperous complaints that called public attention to the existence of a "product liability crisis." Finally, other groups whose activities created risks exposing them to lawsuits found that their liability insurance rates had also risen precipitously. A full-blown "torts crisis" was …

The Meaning Of Equality And The Interpretive Turn, Robin West

Georgetown Law Faculty Publications and Other Works

The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a …

Our Rights And Obligations To Future Generations For The Environment, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

We read every day about the desecration of our environment and the mismanagement of our natural resources. We have always had the capacity to wreck the environment on a small or even regional scale. Centuries of irrigation without adequate drainage in ancient times converted large areas of the fertile Tigris-Euphrates valley into barren desert. What is new is that we now have the power to change our global environment irreversibly, with profoundly damaging effects on the robustness and integrity of the planet and the heritage that we pass to future generations.

Long Arms And Chemical Arms: Extraterritoriality And The Draft Chemical Weapons Convention, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Chemical warfare has long been considered a particularly loathsome form of combat. The specter of unprotected soldiers and nearby noncombatants incapacitated or killed within moments by invisible, silent, odorless vapors discharged by a far-distant enemy has terrified many, and has also energized repeated international attempts to prohibit, or at least to moderate, these applications of deadly science.

Pure Politics, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The present Supreme Court has been noticeably unreceptive to legal claims asserted by racial minorities. Although it is always possible to articulate nonracial motives for the Court's civil rights decisions, the popular perception is that a politically conservative majority wishing to cut back on the protection minority interests receive at majority expense now dominates the Supreme Court. In reviewing the work of the Court during its 1988 Term, The United States Law Week reported that "[a] series of civil rights decisions by a conservative majority of the U.S. Supreme Court making it easier to challenge affirmative action programs and more …

A Decade Of A Maturing Epidemic: An Assessment And Directions For Future Public Policy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The author's goal in this article, is not merely to propose public health strategies for the future, but also to examine why government has been so slow, so equivocal, in its public health response to the acquired immune deficiency syndrome (AIDS) epidemic. He argues that there has been a fundamental ambivalence in perceptions of the epidemic. For some, AIDS is perceived as a disease, with sympathy for sufferers. Once AIDS is viewed as a disease, like other catastrophic diseases, it follows that public policy will be based upon science and epidemiology--health education, research and treatment.

For others, AIDS is caused …

The Virtues Of Redundancy In Legal Thought, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Redundancy has a bad reputation among legal intellectuals. When someone says, for example, that the ninth and tenth amendments are redundant, we can be pretty sure that this person attaches little importance to these constitutional provisions. Listen to one of the definitions of redundant provided by the Oxford English Dictionary: "superabundant, superfluous, excessive."' In this essay, the author proposes that legal theorists pay serious attention to the concept of redundancy used by engineers. He explains how redundancy--in this special sense--is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. The author …

The Future Of District Of Columbia Home Rule, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This article begins by briefly reviewing the recent historical development of home rule. Next, it explores the ways in which the people of the District might obtain a greater voice in the national legislature and more genuine home rule. Finally, it suggests that the District's citizens may have to make a political choice, which they have until now avoided, between seeking gradual improvements in their political rights and pressing strongly for statehood.