Law Commons^™

Human Rights Pragmatism And Human Dignity, David Luban

Georgetown Law Faculty Publications and Other Works

Human rights sound a lot like moral rights: rights that we have because we are human. Many philosophers think it follows that the list of international human rights must therefore be founded on some philosophical account of moral rights or of human dignity. More recently, other philosophers have rejected this foundationalist picture of international human rights (“foundationalist” meaning that moral rights are the foundation of international human rights). These critics argue that international human rights need no philosophical foundation; instead, we should look to the actual practices of human rights: the practices of international institutions, tribunals, NGOs, monitors, and activists. …

Judgment Day For Fraud-On-The-Market?: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

In November 2013, the Supreme Court granted certiorari in the Halliburton litigation to reconsider, and perhaps overrule, its seminal decision in Basic Inc. v. Levinson. Basic legitimated the fraud-on-the-market presumption of reliance, making securities class actions for claims of false corporate publicity viable, and such cases have become the central mechanisms for private securities fraud litigation. This move came after last Term’s Amgen decision, where four justices signaled their doubts about Basic. This essay looks at the connection between Amgen and the continuing viability of fraud-on-the-market litigation. How Halliburton comes out will likely depend on how the Court …

Platform Selection And Strategic Alignment – Fall 2013 Symposium Presentation, Roger Skalbeck

Georgetown Law Faculty Publications and Other Works

Whether providing services or resources, every library is faced with questions of selecting the right resource for the right reason. You need a website, a process for updating content, a way to manage operations, and a system for responding to constant change. Increasingly, new service opportunities are found in cloud and virtual platforms. This presentation looks at opportunities in selecting the right tools for the right job. The presentation will explore some unique aspects of law libraries and legal subject content many libraries rely on, including the strategic value of content from law libraries in metropolitan areas.

Injunctions In Sovereign Debt Litigation, Mark C. Weidemaier, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Injunctions against foreign sovereigns have come under criticism on comity and enforcement grounds. We argue that these objections are overstated. Comity considerations are important but not dispositive. Enforcement objections assign too much significance to the court’s inability to impose meaningful contempt sanctions, overlooking the fact that, when a foreign sovereign is involved, both money judgments and injunctions are enforced through what amounts to a court-imposed embargo. This embargo discourages third parties from dealing with the sovereign and, if sufficiently costly, can induce the sovereign to comply. Nevertheless, we are skeptical about injunctions in sovereign debt litigation. They are prone to …

Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King

Georgetown Law Faculty Publications and Other Works

The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation.

Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by …

The Ethics Of Lobbying Under The District Of Columbia Rules Of Professional Conduct, Michael S. Frisch

Georgetown Law Faculty Publications and Other Works

The District of Columbia is the epicenter of lobbying in the United States. With the presence of the Congress, the Executive Branch and its various Departments and independent agencies, few industries, trade associations or large businesses lack a Washington-based government relations arm. Law firms and lawyers fill in the gaps for those entities that lack a Washington presence or supplement in-house staffing with additional expertise and contacts.

Under these circumstances, it should come as no surprise that the bar authorities in the District of Columbia have examined the issue of lawyers and lobbying and implemented rules that differ from the …

Towards A Framework Convention On Global Health, Lawrence O. Gostin, Eric A. Friedman, Kent Buse, Attiya Waris, Moses Mulumba, Mayowa Joel, Lola Dare, Ames Dhai, Devi Sridhar

Georgetown Law Faculty Publications and Other Works

A global health treaty, a Framework Convention on Global Health (FCGH)–grounded in the right to health, with the central goal of reducing immense domestic and global health inequities–could serve as a robust global governance instrument to underpin the United Nations post-2015 Millennium Development Goals (MDGs). It would ensure for all people the three essential conditions for a healthy life–public health, health care, and the positive social determinants of health–while advancing good governance, responding to drivers of health disadvantages for marginalized populations, elevating health in other legal regimes, and enhancing people's ability to claim their rights.

The legally binding nature of …

How Nfib V. Sebelius Affects The Constitutional Gestalt, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).

After Sebelius …

Advancing The Right To Health Through Global Organizations: The Potential Role Of A Framework Convention On Global Health, Eric A. Friedman, Lawrence O. Gostin, Kent Buse

Georgetown Law Faculty Publications and Other Works

Organizations, partnerships, and alliances form the building blocks of global governance. Global health organizations thus have the potential to play a formative role in determining the extent to which people are able to realize their right to health.

This article examines how major global health organizations, such as WHO, the Global Fund to Fight AIDS, TB and Malaria, UNAIDS, and GAVI approach human rights concerns, including equality, accountability, and inclusive participation. We argue that organizational support for the right to health must transition from ad hoc and partial to permanent and comprehensive.

Drawing on the literature and our knowledge of …

Against Endowment Theory: Experimental Economics And Legal Scholarship, Gregory Klass, Kathryn Zeiler

Georgetown Law Faculty Publications and Other Works

Endowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation. Today, appeals to a generic “endowment effect” can be found throughout the legal literature. More recent experimental results, however, suggest that the empirical evidence for endowment theory is weak at best. When the procedures used in laboratory experiments are altered to rule out alternative explanations, the “endowment effect” disappears. This and other recent evidence suggest that mere ownership does not …

Realizing The Right To Health Through A Framework Convention On Global Health?, Eric A. Friedman, Jashodhara Dasgupta, Alicia E. Yamin, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article introduces a special issue of Health and Human Rights (volume 15, issue 1) that features articles exploring potential elements of and key questions and issues surrounding the Framework Convention on Global Health (FCGH). The FCGH is a proposed global health treaty that would be grounded in the right to health, with the aim of closing domestic and global health inequities. It would set standards and ensure financing for health care and public health services, while also addressing social determinants of health. The FCGH would raise the priority of health in other sectors, ensure effective private sector regulation, and …

Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is …

Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole

Georgetown Law Faculty Publications and Other Works

The Dreyfus affair reminds us that the rule of law and basic human rights are not self-executing. In a democracy, individual rights and the rule of law are designed to check popular power and protect the individual from the majority. Yet paradoxically, they cannot do so without substantial popular support. Alfred Dreyfus received two trials—or at least the trappings thereof—and was twice wrongly convicted. The rule of law was initially unable to stand between an innocent man and the powerful men who sought to frame him. But the issue of Dreyfus's guilt or innocence was not …

What Privacy Is For, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection …

Stemming The Global Trade In Falsified And Substandard Medicines, Lawrence O. Gostin, Gillian J. Buckley, Patrick W. Kelley

Georgetown Law Faculty Publications and Other Works

Drug safety and quality is an essential assumption of clinical medicine, but there is growing concern that this assumption is not always correct. Poor manufacturing and deliberate fraud occasionally compromises the drug supply in the United States, and the problem is far more common and serious in low- and middle-income countries with weak drug regulatory systems. An Institute of Medicine consensus committee report identified the causes and possible solutions to the problem of falsified and substandard drugs around the world.

The vocabulary people use to discuss the problem is itself a concern. The word counterfeit is often used innocuously to …

What Consensus? Ideology, Politics And Elections Still Matter, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article, which was prepared for an ABA Antitrust Section Panel, discusses the role of ideology and politics in antitrust enforcement and the impact of elections in the last twenty year on enforcement and policy at the federal antitrust agencies. The article explains the differences in antitrust ideologies and their impact on policy preferences. The article then uses a database of civil non-merger complaints by the DOJ and FTC over the last three Presidential administrations to analyze changes in the number, type and other characteristics of antitrust enforcement. It also discusses change in vertical merger enforcement and other antirust policies …

A Skeptic’S Case For Sovereign Bankruptcy, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This essay describes fundamental flaws in the sovereign debt restructuring regime, but questions the prevailing arguments for sovereign bankruptcy. The author concludes that efficient debt outcomes may well come about without bankruptcy, but that a statutory regime is necessary to achieve sovereign autonomy and political legitimacy.

Tackling The Global Ncd Crisis: Innovations In Law And Governance, Bryan P. Thomas, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

35 million people die annually of non-communicable diseases (NCDs), 80% of them in low- and middle-income countries—representing a marked epidemiological transition from infectious to chronic diseases and from richer to poorer countries. The total number of NCDs is projected to rise by 17% over the coming decade, absent significant interventions. The NCD epidemic poses unique governance challenges: the causes are multifactorial, the affected populations diffuse, and effective responses require sustained multi-sectorial cooperation. The authors propose a range of regulatory options available at the domestic level, including stricter food labeling laws, regulation of food advertisements, tax incentives for healthy lifestyle choices, …

Construction And Constraint: Discussion Of Living Originalism, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Jack Balkin's Living Originalism raises many important questions about contemporary constitutional theory. Can and should liberals and progressives embrace originalism? Can the New Deal expansion of national legislative power be given originalist foundations? Is there a plausible originalist case for a right to reproductive autonomy and hence for the Court's decision in Roe v. Wade? Is the fact of theoretical disagreement among originalists evidence for the thesis that the originalist project is in disarray?

That Thing That You Do: Comment On Joseph Massad’S 'Empire Of Sexuality', Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

Massad’s thesis is simple, in fact, perfect in its simplicity. Empire is a terrible force that wants to penetrate, overpower and hegemonize. It has a center, a headquarters if you like, the West. It functions with two arms: capitalism (later neoliberal) and Euro-American hegemony. The first arm represents the objective drive of capital that transforms sites and cultures as it spreads the market in the shape of commodity exchange. It has become a universal system, Massad contends, though with varying effects on the center (West) from the periphery (rest). Whereas its march on the former has been totally transformative, in …

Adaptive Clinical Teaching, Colleen F. Shanahan, Emily A. Benfer

Georgetown Law Faculty Publications and Other Works

Legal education has a clear mission–to develop competent and committed members of the legal profession–but this goal can be an elusive one to meet. This is because legal educators often develop their most effective approaches to teaching through trial and error and instinct. A microcosm of this struggle for effective legal teaching is clinical legal education’s distinct set of commitments, pedagogy and teaching methodologies. Building on the trials, errors, and instincts of clinical teachers, this article offers a more intentional approach for designing, teaching, and supervising in a clinic: “adaptive clinical teaching” (ACT). ACT is a structured method of guided …

Tobacco Endgame Strategies: Challenges In Ethics And Law, Bryan P. Thomas, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

There are complex legal and ethical tradeoffs involved in using intensified regulation to bring smoking prevalence to near-zero levels. The authors explore these tradeoffs through a lens of health justice, paying particular attention to the potential impact on vulnerable populations. The ethical tradeoffs explored include the charge that heavy regulation is paternalistic; the potentially regressive impact of heavily taxing a product consumed disproportionately by the poor; the simple loss of enjoyment to heavily addicted smokers; the health risks posed by, for example, regulating nicotine content in cigarettes—where doing so leads to increased consumption. Turning to legalistic concerns, the authors explore …

The Historical Contingencies Of Conflict Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This article reviews the historical contingency of theory and practice in conflict engagement. World War II and the Cold War produced adversarial, distributive, competitive, and scarce resources conceptions of negotiation and conflict resolution, as evidenced by game theory and negotiation practice. More recent and more optimistic theory and practice has focused on party needs and interests and hopes for more party-tailored, contingent, flexible, participatory and more integrative and creative solutions for more than two disputants to a conflict. The current challenges of our present history are explored: continued conflict in both domestic and international settings, the challenge of “scaling up” …

Taxation, Risk, And Portfolio Choice: The Treatment Of Returns To Risk Under A Normative Income Tax, John R. Brooks

Georgetown Law Faculty Publications and Other Works

Many articles in the legal and economic literature claim that a pure Haig-Simons income tax cannot effectively tax investment income. This is because an investor can use leverage to gross up her investments in risky assets such that the increased gain (or loss) exactly offsets any income tax (or deduction) on the returns to risk-taking. This article argues, however, that while it is possible for an investor to make such portfolio shifts, she almost certainly will not because of the increased risk of doing so.

Central to any discussion of the effects of taxation on investment risk-taking is the meaning …

Why Jeremy Waldron Really Agrees With Me, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Herewith a response to Jeremy Waldron's review of my book, On Constitutional Disobedience. I conclude that Waldron actually agrees with all of my key claims.

Criminalizing Normal Adolescent Behavior In Communities Of Color: The Role Of Prosecutors In Juvenile Justice Reform, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent overrepresentation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice …

Of Law And The Revolution, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws …

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

Measuring Justice, Jane H. Aiken, Stephen Wizner

Georgetown Law Faculty Publications and Other Works

The research imperative of refining ways to measure justice is important and necessary. Our work as lawyers improves the more we know about our effectiveness and the more our choices are evidence based. Nevertheless, quantifying the work of a lawyer is not easy. How do we ensure that any measure of justice captures outcomes for both trial-based advocacy and non-trial-based advocacy on behalf of clients, including negotiated outcomes? How do we quantify the role lawyers play in listening to our clients, explaining the systems in which they operate, and supporting them through often very difficult times in their lives? How …

Putting A Price On Whales To Save Them: What Do Morals Have To Do With It?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The author explores the moral implication of a proposal to create an international market in whale shares as an alternative to the dysfunctional International Whaling Commission. She finds the proposal amoral because whales, like humans, have an intrinsic right to life. Since this leaves whales vulnerable to whale hunting nations, she suggests that international environmental organizations might help a whale preservation norm emerge in whaling nations by using education and interventionist activities that focus on whaling’s cruelty to ultimately encourage the citizens and governments of those nations to change their self-image as whale eating cultures.