Law Commons^™

Liability For Unreasonably And Unavoidably Unsafe Products: Does Negligence Doctrine Have A Role To Play, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

To what extent, if any, should courts hold defendants liable for harm caused by hazards associated with the unduly and unavoidably dangerous aspects of goods they produce and market?

Where manufacturers might have eliminated unreasonable risks arising from the manufacture or design of a product, or from the information (or lack thereof) conveyed by a product's labeling, the tort system traditionally has provided injured victims with an opportunity to obtain compensation for injuries attributable to these risks. Moreover, even where risks from manufacturing or construction defects could not have been eliminated with the exercise of reasonable care, the courts have …

Getting Normative: The Role Of Natural Rights In Constitutional Adjudication, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Beyond Autonomy: Coercion And Morality In Clinical Relationships, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

This article considers the problem of line-drawing between autonomy-preserving and autonomy-negating influence in clinical relationships. The author’s purpose is not to propose particular boundaries, either with respect to reproductive decisions by HIV-infected women or for other clinical choices. Rather, he attempts to shed some light on what drives our disputes about whether one or another influence method is compatible with autonomous choice.

The author argues that such disagreements reflect underlying conflicts between normative commitments, and that resolving these conflicts is essential to settling controversies over whether particular influences unduly interfere with autonomous choice. Alternative understandings of the prerequisites for autonomous …

A Right To Read Anonymously: A Closer Look At "Copyright Management" In Cyberspace, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

It has become commonplace to say that we have entered the age of information. The words conjure up images of a reader’s paradise—an era of limitless access to information resources and unlimited interpersonal communication. In truth, however, the new information age is turning out to be as much an age of information about readers as an age of information for readers. The same technologies that have made vast amounts of information accessible in digital form are enabling information providers to amass an unprecedented wealth of data about who their customers are and what they like to read. In the new …

Can A 'Dumb Ass Woman' Achieve Equality In The Workplace? Running The Gauntlet Of Hostile Environment Harassing Speech, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

Sandra Bundy may have guessed that her new job with the District of Columbia Department of Corrections would be a challenge. What she may not have expected was that she would have to meet the challenge under very different conditions than those faced by her male coworkers. Ms. Bundy's work was continually interrupted by one of her supervisors, who kept calling her into his office and forcing her to listen to his theories about how women ride horses to obtain sexual gratification. He repeatedly asked Ms. Bundy to come home with him in order to view his collection of pictures …

Dual Regulation, Collaborative Management Or Layered Federalism: Can Cooperative Federalism Models From Other Laws Save Our Public Lands?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Few would assert that the current governance model for managing the nation's public lands, which grants exclusive authority to the federal government, has protected the natural resource values of those lands or provided a framework for the harmonious resolution of conflicts over their use. Dissatisfaction is apparent from recurrent proposals to privatize public lands or to devolve their ownership to the states. The emergence of the "wise use" and "county supremacy" movements directly challenges the authority of the federal government to manage its land. While this new state and local assertiveness is not without historical basis nor completely without merit, …

Representing The Unrepresented In Class Action Settlements, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

Class actions are important and useful both to deter wrongful conduct and to provide compensation for injured plaintiffs. In complex cases, however, the existing class action structure falters. In this article, Messrs. Wolfman and Morrison argue that in "settlement class actions" the current class action rules do not adequately protect class members whose interests do not coincide with those of the class representatives and the class attorneys. Through a survey of recent, prominent settlement class actions, the authors show that the current system does not fairly treat subgroups in a class with respect to matters as diverse as future injury, …

Constructing A Clinic, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

The author addresses some basic structural questions that the clinic's supervisor or supervisors might think about when beginning to design or renovate a program. These include the goals of the proposed clinic; the number and qualifications of its teaching and support staff; the desired relationships among staff members; the subject matter of the clinic's cases; the duration of the clinic, the amount of course credit that students should receive for taking it, and the caseload per student; the grading system; the relationships between the students and the tribunals or other fora in which they will be practicing; how the clinic …

Don’T Gut Political Asylum, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

For many years, the United States has granted political asylum to victims of persecution who come to our country and seek our protection. Now, however, Congress is on the verge of abolishing the right of political asylum.

Congress is not proposing to repeal the asylum provisions of the Refugee Act of 1980. An outright repeal would probably never pass, because many in Congress, recalling America's sorry treatment of refugees during the Holocaust, accept the humanitarian premises underlying asylum. Rather, the abolition is in the form of a new, apparently innocuous "procedural" requirement. The House Judiciary Committee recently adopted, as an …

The Relevance Of The Framers’ Intent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Ever since the revival of interest in originalism that occurred in the 1980s, critics have 'charged that for a variety of reasons it is impractical, if not impossible, to determine the Framers' intentions. In addition, they argue that we today should not be bound by the intentions of a few men who lived and died over two-hundred years ago. In sum, adherence to original intent is rejected as being impractical, unjust, or both.

In this article, the author argues that we cannot assess either the practicality or the justice of discerning original intent without first asking why it is we …

The Independent Counsel Statute: Bad Law, Bad Policy, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The Watergate scandal-and the crisis in public confidence in government it spawned-left us many legacies, one of which is the Independent Counsel ("IC") statute. Over twenty years after the fact, the "lessons" of the scandal itself continue to be the dominant reference. It is time to evaluate the "lessons" of Watergate's legacies and, in particular, the IC mechanism.

The Four Doctrines Of Self-Executing Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

A distinction has become entrenched in United States law between treaties that are "self-executing" and those that are not. The precise nature of this distinction--indeed, its very existence--is a matter of some controversy and much confusion. More than one lower federal court has pronounced the distinction to be the "most confounding" in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson's observation that " [t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion" surrounding it. The …

Collective Force And Constitutional Responsibility: War Powers In The Post-Cold War Era, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

The end of the Cold War has inaugurated a new era in international politics. The familiar terrain of the last half century has given way to a world that is, in many ways, more complex and turbulent. Regional conflicts, civil wars, ethnic strife, genocide, and humanitarian emergencies have exploded across the globe. As crises such as those in Bosnia, Somalia, and Haiti have unfolded, the international community increasingly has looked to the United States-as the last remaining superpower- to provide leadership and resources in a broad array of conflict situations.

Enriching The Legal Ethics Curriculum: From Requirement To Desire, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

The problem has become all too familiar: Acting at least in part from noble motives, the American Bar Association ("ABA") requires all law students at ABA-accredited law schools to take a course in "professional responsibility." Every accredited school offers a course or courses that enable students to fulfill this requirement. Under these circumstances, the professional responsibility course can easily assume the character of high school drivers' education or health classes: It often becomes an obligatory exercise, in which students think they must woodenly learn the maxims of the ABA Code of Conduct or Rules of Professional Responsibility. Faced with this …

How Do We Get Rid Of These Things? Dismantling Excess Weapons While Protecting The Environment, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The startling successes of contemporary international arms control negotiations call to mind the old aphorism that one should be careful about what one wishes for, because the wish just might come true.

Today, disarmament diplomacy has wrought unprecedented triumphs across a wide range of global bargaining issues, producing a series of watershed treaties that offer spectacular new advantages for the security of the United States and for the prospect of enduring world peace. At the same time, however, these unanticipated negotiation breakthroughs have themselves generated unforeseen implementation problems, spawning a host of novel difficulties for which the traditional tools and …

Health Information Privacy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Thoughtful scholarship in the area of informational privacy sometimes assumes that a significant level of privacy can coexist with the development of a modern health information infrastructure. Some commentators suggest that we can have it both ways: that adequate legal protection of informational privacy will eliminate the need to significantly limit the collection of health data. This article demonstrates that there is no such easy resolution of the conflict between the need for information and the need for privacy. Because significant levels of privacy cannot realistically be achieved within the health information infrastructure currently envisaged by policymakers, we confront a …

Tuberculosis And The Power Of The State: Toward The Development Of Rational Standards For The Review Of Compulsory Public Health Powers, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article uses tuberculosis as the paradigm for exploring rational standards for the exercise of compulsory public health powers. Extant doctrine in disability and constitutional law provides a lens for examining judicial review of state interventions. The author first sets out the central epidemiological and biological aspects of tuberculosis to demonstrate the strength of the governmental interest in curtailing the epidemic. Second, he examines the interventions of testing, screening, and confinement of persons with tuberculosis, where he focuses on two congregate settings--correctional and health care facilities--that present substantial health risks and are principal foci for the exercise of state intervention. …

Whose Dispute Is It Anyway? A Philosophical And Democratic Defense Of Settlement (In Some Cases), Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I have often thought myself ill-suited to my chosen profession. I love to argue, but I am often too quick to say both, "yes, I see your point" and concede something to the "other side," and to say of my own arguments, "yes, but, it's not that simple." In short, I have trouble with polarized argument, debate, and the adversarialism that characterizes much of our work. Where others see black and white, I often see not just the "grey" but the purple and red-in short, the complexity of human issues that appear before the law for resolution.

In the last …

Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford provided an illuminating review of Dennis Coyle's book Property Rights and the Constitution. Radford observes that, in addition to studying post-New Deal land use cases, Coyle "provides an ideological framework that illuminates several key strands in the constitutional jurisprudence of property law ... [and] sets forth his own theories of the vital role of private property in creating and maintaining the American constitutional system." Radford's review is a generally enthusiastic one. He sees Coyle's book as providing a much-needed corrective to "the existing pro-regulatory bias …

The Original Understanding Of The Takings Clause And The Political Process, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation "goes too far" in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind …

Health Policy Below The Waterline: Medical Care And The Charitable Exemption, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

For almost one hundred years, America's nonprofit hospitals have enjoyed nearly automatic exemption from federal income taxation. During this time, nonprofit hospitals transformed themselves from resting places of last resort for the sick poor into centers of high-technology intervention for all income groups. The financing of their services evolved in parallel, from primary dependence on the generosity of religious orders and charitable donors, to almost exclusive reliance on payments for services rendered. Meanwhile, the exemption's doctrinal underpinnings were repeatedly reinvented to accommodate change in the hospital industry's financial structure and social role. When Congress first enacted a charitable exemption to …

The Resurgent Tuberculosis Epidemic In The Era Of Aids: Reflections On Public Health, Law, And Society, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The resurgence of tuberculosis and the rise in drug-resistant cases is neither inexplicable nor unexpected, but rather is the predictable outcome of a complex configuration of biological, social, and behavioral factors that have converged in America over the past decade. This article examines the biological, social, and behavioral causes of the epidemic, and suggests a comprehensive public health strategy for curtailing tuberculosis and other infectious diseases. When thoughtfully conceived, public health strategies can be implemented that are consistent with the limitations that both constitutional law and disability law place on the authority of the state. While traditional concepts of public …

Environmental Justice Clinics: Visible Models Of Justice, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article examines and evaluates the contributions of environmental justice law clinics to pedagogy, law reform and legal services. The author bases her observations and conclusions on her experiences at Georgetown University Law Center where she teaches a course in environmental equity and supervises students in an environmental justice clinic.

Part II summarizes current knowledge about the incidences and causes of environmental inequity and the legal barriers to achieving environmental justice. This discussion highlights the distinctive aspects of environmental justice issues which influence the design of environmental justice clinical programs. Part III presents general information on legal clinical programs and …

Ethics And The Settlement Of Mass Torts: When The Rules Meet The Road, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The settlement of mass torts through the class action device presents some difficult and troubling issues, including important questions of due process, fairness, justice, efficiency, equality, equity, and ethics. In this context, some of these foundational values conflict with each other and must be "resolved" by judges who must decide actual cases. In analyzing the applicable laws and rules (class action rules, constitutional provisions, and ethics rules) we find answers or suggestions that are often ambiguous or contradictory. All of these unresolved ambiguities raise the question of whether mass torts are any different from any number of difficult cases our …

Color-Coded Standing, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Remarkably, the Supreme Court has held that whites who wish to challenge the constitutionality of affirmative action plans have standing to do so. In Northeastern Florida Chapter of the Associated General Contractors v. City of Jacksonville the Supreme Court upheld the standing of non-minority construction contractors to challenge a minority setaside program under the Equal Protection Clause of the United States Constitution. What is remarkable is not that the result reached in the case was wrong, but that the Court was able to reach that result given its most recent standing precedents. In previous Terms, the Supreme Court had taken …

Ten Arguments For The Abolition Of Regulatory Takings Doctrine, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Takings Clause of the Fifth Amendment prohibits the federal government from "taking" property for a public purpose without paying just compensation. The Supreme Court has come to interpret the clause to require that the government compensate real property owners in some unclear class of cases when regulation of the property has resulted in severe economic losses. The proposition that regulation alone, without appropriation, occupation, or use by the government, can work a taking is known as the "regulatory takings" doctrine.

Intellectual Coherence In An Evidence Code, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Evidence (Federal Rules or Rules) were created in large part to promote uniformity and predictability in federal trials by providing a relatively instructive guide for judges and lawyers concerning the admissibility of evidence. As with any codification, success in this respect requires, among other things, that there be a considerable degree of intellectual coherence among the code's various provisions. The Federal Rules fall short of intellectual coherence in a number of areas. They contain contradictory and inconsistent mandates that do not make theoretical sense and therefore accord the trial judge almost unlimited discretion in these areas. …

Reverse Engineering And The Rise Of Electronic Vigilantism: Intellectual Property Implications Of "Lock-Out" Programs, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Over the past few years, there has been an abundance of scholarship dealing with the appropriate scope of copyright and patent protection for computer programs. This Article approaches those problems from a slightly different perspective, focusing on the discrete problem of lock-out programs. The choice of lock-out as a paradigm for exploring the interoperability question and the contours of copyright and patent protection of computer programs is informed by two considerations. First, for purposes of the interoperability inquiry, lock-out programs represent an extreme; they are discrete, self-contained modules that are highly innovative in design, yet that serve no purpose other …

Has The U.S. Supreme Court Finally Drained The Swamp Of Takings Jurisprudence? The Impact Of Lucas V. South Carolina Coastal Council On Wetlands And Coastal Barrier Beaches, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article argues that the Court's reliance on the law of property neither creates an internal inconsistency in takings law nor necessarily leads to further destruction of natural resources. Background principles of property law, such as custom and public trust, have long provided a basis for government protection of the public's interest in certain types of land, like the barrier beach David Lucas sought to develop.

Thus, the Lucas case need not be perceived as casting a constitutional cloud over laws protecting important ecosystems like wetlands and barrier beaches. The decision may not place these resources in greater danger from …

Guns, Militias And Oklahoma City, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

While this Symposium on "The Second Amendment and the Right to Keep and Bear Arms" was in final stages of production a massive explosion ripped through a federal office building in Oklahoma City, Oklahoma, killing scores of men, women, and children. As this Foreword is being written the final count of casualties is still unknown. Also unknown at this time are the identities of all who were involved in planning and executing this crime. One man is in custody, but to this point he has chosen to remain silent. Another unknown suspect is still at large.'