Law Commons^™

Book Review: The Aspirin Wars: Money, Medicine, And 100 Years Of Rampant Competition, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

The recent identification of a possible link between the long-term use of aspirin and a reduced incidence of colon and rectal cancer has directed renewed attention to a familiar household medication whose origins reach back to antiquity.

Competition from other painkillers had begun to cut deeply into the market once dominated by aspirin-based products when studies indicated the possibilities, first that the regular consumption of aspirin might prevent second heart attacks, and later that it might lower the risk of heart attacks in healthy individuals. If these two discoveries, as well as the new finding about colon and rectal cancers, …

Thurgood Marshall: Courageous Advocate, Compassionate Judge, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall's life has spanned virtually the entire twentieth century, allowing him to witness its worst and its best. When he was born in 1908, segregation was legal and pervasive, and racial hatred extreme; in the year of his birth alone, eighty-nine black men were lynched. A grandson of slaves on both sides of his family, Marshall knew, from an early age, both the ugliness and the tenacity of racism. Determined to fight it, Marshall disregarded the difficulties and the dangers, and spent his life battling discrimination, earning the nickname "Mr. Civil Rights." His efforts, coupled with those of others …

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 Sound Of Silence: Default Rules And Contractual Consent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this article, the author challenges the received wisdom of "gap-filling in the absence of consent" by showing how the concept of default rules bolsters the theoretical importance of consent. He accomplishes this by expanding and refining his analysis of a "consent theory of contract." The author proposes that the concept of default rules reveals consent to be operating at two distinct levels of contract theory. First, the presence of consent to be legally bound is essential to justify the legal enforcement of any default rules. Second, nested within this overall consent to be legally bound, consent also operates to …

Rational Bargaining Theory And Contract: Default Rules, Hypothetical Consent, The Duty To Disclose, And Fraud, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The author begins by responding to Coleman's rational choice approach to choosing default rules. In part I, he applies the expanded analysis of contractual consent and default rules that he had recently presented elsewhere to explain how rational bargaining, hypothetical consent, and actual consent figure in the determination of contractual default rules. Whereas Coleman advocates the centrality of rational bargaining analysis to this determination, the author explains why rational bargaining theory's role must be subsidiary to that of consent.

The author then turns his attention to Coleman's appraisal of contracting parties' duty to disclose information concerning the resources that are …

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. …

Introductory Remarks: Brown V. Board Of Education And Its Legacy: A Tribute To Justice Thurgood Marshall, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This issue of the Fordham Law Review presents Fordham Law School's tribute to one of the giants of American law and American history on the occasion of his retirement from the Supreme Court, Justice Thurgood Marshall. Because he decided to make the law his career and because of the way in which he pursued that career, the United States today is a remarkably different place than it was in 1933 when he began practice, and ours is a far more just society.

Justice Marshall made history repeatedly--as Chief Counsel of the NAACP Legal Defense Fund, as Judge of the United …

When Is An Amendment Not An Amendment? Modification Of Arms Control Agreements Without The Senate, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The tempest over the proposed "reinterpretation" of the Anti- Ballistic Missile Treaty has only barely been stilled, and the full impact of the dissolution and reorganization of the Soviet Union is far from clear. But already we can detect early warnings about the next probable source of intense constitutional conflict between the American executive branch and the Congress in their ongoing struggle for primacy in the conduct of United States foreign relations. This imminent battle-again arising in the context of disarmament treaties, perhaps the most controversial and crucial aspect of America's international public policy-has not yet been fully joined. But …

The Jurisprudence Of Non-Proliferation: Taking International Law Seriously, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This essay is about the power of the international law of nonproliferation- its mounting power in the world today and its properly augmented power in an enlightened future. The article focuses on three primary areas in which international law may play a greater role than is commonly appreciated in affecting the behavior of potential proliferators, their suppliers, and their resolute opponents. The three topics-areas in which the essay pleads for law to be taken even more seriously, and by a wider audience of governments and the international public-are: (a) treaties (especially the provisions of those treaties that commit the parties …

Environment And Trade As Partners In Sustainable Development: A Commentary, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

Trade is not an end in itself; rather, it is a means to an end. The end is environmentally sustainable economic development. So viewed, there are legitimate constraints on trading patterns and practices that are necessary to ensure that the "instrument of trade" leads to environmentally sustainable development. Measures needed to protect the environment cannot be forsworn simply because they may adversely affect free trading relationships.

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 …

Thurgood Marshall: Tax Lawyer, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

During his twenty-four years on the Supreme Court, Justice Thurgood Marshall wrote better opinions on the law of federal income taxation than any of his fellow Justices. This is, of course, a subjective appraisal which others may dispute. Nevertheless, from two decades of teaching federal income taxation, I am convinced of the quality of Marshall's work.

Life After Hardwick, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Unless or until it is narrowed or overruled, Bowers v. Hardwick will dominate the law concerning government regulation of sexuality. In Hardwick the Supreme Court upheld as constitutional a Georgia sodomy statute that made oral or anal intercourse a felony punishable by up to twenty years in prison. The Court ended its long reluctance to assess the constitutionality of limitations on sexuality as distinct from contraception by ruling that the protected zone created by the privacy right stops short of covering private consensual sexual relations between adults. In so ruling, the Court left in place a patchwork of prohibitory laws …

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 …

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.

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 …

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 …

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, …

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.

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 …

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, …

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 …

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 …

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 …

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 …

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.

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 …

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 …

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.