Law Commons^™

Legal Movements In Intellectual Property: Trips, Unilateral Action, Bilateral Agreements, And Hiv/Aids, Margo A. Bagley

Faculty Articles

This Article begins with an overview of the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") and the HIV/AIDS pandemic which created the need for the Doha Declaration. It then discusses two trade-related movements, unilateral action and TRIPS-plus bilateral agreements, that call into question the long-term effectiveness of the TRIPS Agreement process, generally, and the benefits of the Doha Declaration, in particular, in addressing multiple facets of the access to essential medicines problem. This Article concludes that a consideration of these issues should be included in the development of any further TRIPS-related solutions to …

What's Property Got To Do With It?, David M. Driesen

College of Law - Faculty Scholarship

This essay reviews Daniel Cole's "Pollution & Property," a recent book on property rights regimes for pollution control. It questions the utility of property rights typologies as a means of understanding pollution control regimes. The review provides a detailed analysis of the shift of rights that occurs in going from a traditional regulatory program to an emissions trading program. It finds that the shift does not create a fundamentally different property regime and explains precisely what changes. This analysis also explains the meaning of calls to perfect property rights in this context. The review concludes that Professor Cole's book does …

The Qualified Legal Compliance Committee: Using The Attorney Conduct Rules To Restructure The Board Of Directors, Jill E. Fisch, Caroline M. Gentile

All Faculty Scholarship

The Securities and Exchange Commission introduced a new corporate governance structure, the qualified legal compliance committee, as part of the professional standards of conduct for attorneys mandated by the Sarbanes-Oxley Act of 2002. QLCCs are consistent with the Commission’s general approach to improving corporate governance through specialized committees of independent directors. This Article suggests, however, that assessing the benefits and costs of creating QLCCs may be more complex than is initially apparent. Importantly, QLCCs are unlikely to be effective in the absence of incentives for active director monitoring. This Article concludes by considering three ways of increasing these incentives.

The Bush Administration's Response To The International Criminal Court, Jean Galbraith

All Faculty Scholarship

No abstract provided.

Something For Nothing: Liberal Justice And Welfare Work Requirements, Amy L. Wax

All Faculty Scholarship

Welfare reform legislation enacted in 1996, which created the Temporary Assistance for Needy Families (TANF) program, makes entitlement to federal poor relief conditional on fulfilling work requirements. The article addresses the following timely question: whether just liberal societies should require work as a condition of public assistance for the able-bodied, or whether aid should be provided unconditionally through, for example, a basic guaranteed income for all. Drawing on the work of liberal egalitarian theorists, the article investigates whether standard liberal theories of justice can help make sense of arguments commonly voiced in favor of work requirements: that unconditional welfare guarantees, …

Legal Transitions: Some Welfarist Remarks, Matthew D. Adler

Faculty Scholarship

This essay offers a sympathetic, utilitarian critique of Louis Kaplow's famous argument for legal retroactivity in his 1986 article, "An Economic Analysis of Legal Transitions." The argument, very roughly, is that the prospect of retroactivity is desirable if citizens are rational because it gives them a desirable incentive to anticipate legal change. My central claim is that this argument trades upon a dubious, objective view of probability that assumes rational citizens assign the same probabilities to states as rational governmental officials. But it is subjective, not objective probabilities that bear on rational choice, and the subjective probabilities of rational citizens …

Risk, Death And Harm: The Normative Foundations Of Risk Regulation, Matthew D. Adler

Faculty Scholarship

Is death a harm? Is the risk of death a harm? These questions lie at the foundations of risk regulation. Agencies that regulate threats to human life, such as the EPA, OSHA, the FDA, the CPSC, or NHTSA, invariably assume that premature death is a first-party harm - a welfare setback to the person who dies - and often assume that being at risk of death is a distinct and additional first-party harm. If these assumptions are untrue, the myriad statutes and regulations that govern risky activities should be radically overhauled, since the third-party benefits of preventing premature death and …

Introduction To, Preferences And Rational Choice: New Perspectives And Legal Implications, Matthew D. Adler, Claire Finkelstein, Peter Huang

Faculty Scholarship

No abstract provided.

Book Review, W Dennis Keating

Law Faculty Articles and Essays

Reviewing L. Vale, Reclaiming Public Housing: A Half Century of Struggle in Three Public Neighborhoods, Harvard University Press (2002)

Immigration And The Workplace: Immigration Restrictions As Employment Discrimination, Howard F. Chang

All Faculty Scholarship

No abstract provided.

Regionalization Of International Criminal Law Enforcement: A Preliminary Exploration, William W. Burke-White

All Faculty Scholarship

No abstract provided.

Is There A Role For Lawyers In Preventing Future Enrons?, Jill E. Fisch, Kenneth M. Rosen

All Faculty Scholarship

Following the collapse of the Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer’s role by requiring covered attorneys to “report up” evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to “report up” subjects a lawyer to liability under federal law.

This Article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors …

How To Fix Wall Street: A Voucher Financing Proposal For Securities Intermediaries, Stephen Choi, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Rhetoric And Realities Of Gentrification: Reply To Powell And Spencer, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Gentrification represents one of the most encouraging trends in city life since the 1960s. That may be a sad commentary on the fate of American cities or on our urban policies, but it is nevertheless true. The return of affluent people to urban living offers the possibility of reversing declining populations and municipal revenues, permitting enhanced spending on basic services, and increasing employment and educational opportunities. It also brings greater ethnic and economic diversity, which can contribute to a more humane social and cultural life. The great drawback to gentrification is that increased demand for housing increases rents, at least …

Simplifying The Transition To A (Progressive) Consumption Tax, Mitchell L. Engler, Michael S. Knoll

All Faculty Scholarship

No abstract provided.

Tools For Inclusion: Making It Easier To Go To Work: What The Changes At Social Security Mean To You, David Hoff, Elena Varney, Lisa O'Connor

Tools for Inclusion Series, Institute for Community Inclusion

Recent changes to Social Security reduce the financial consequences of working for people who receive benefits. This publication explains the changes and how they impact people with disabilities who want to work.

Reconstructing Climate Policy: Beyond Kyoto, Jonathan B. Wiener, Richard B. Stewart

Faculty Scholarship

In their comprehensive analysis of the Kyoto Protocol and climate policy, Richard B. Stewart and Jonathan B. Wiener examine the current impasse in climate policy and the potential steps nations can take to reduce greenhouse gases. They summarize the current state of information regarding the extent of global warming that would be caused by increasing uncontrolled greenhouse gas emissions. They explain why participation by all major greenhouse gas-emitting countries is essential to curb future greenhouse gas emissions and also note the significant obstacles to obtaining such participation.

Stewart and Wiener argue it is in the national interest of the United …

Containing The Promise Of Insurance: Adverse Selection And Risk Classification, Tom Baker

All Faculty Scholarship

Insurance law, risk pools, adverse selection

The Puzzle Of Ex Ante Efficiency: Does Rational Approvability Have Moral Weight?, Matthew D. Adler

Faculty Scholarship

A governmental decision is "ex ante efficient" if it maximizes the satisfaction of everyone's preferences ex ante, relative to other possible decisions. Equivalently, each affected person would be rational to approve the decision, given her preferences and beliefs at the time of the choice. Does this matter, morally speaking? Do governmental officials - legislators, judges, regulators - have a moral reason to make decisions that are ex ante efficient? The economist's answer is "yes." "Ex ante efficiency" is widely seen by welfare economists to have moral significance, and often appears within law-and-economics scholarship as a criterion for evaluating legal doctrines. …

Of Property And Anti-Property, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Private property is widely perceived as a potent prodevelopment and anticonservationist force. The drive to accumulate wealth through private property rights is thought to encourage environmentally destructive development; legal protection of such property rights is believed to thwart environmentally friendly public measures. Indeed, property rights advocates and environmentalists are generally described as irreconcilable foes. This presumed clash often leads environmentalists to urge public acquisition of private lands. Interestingly, less attention is paid to the possibility that the government may prove no better a conservator than private owners. Government actors often mismanage conservation properties, collaborating with private developers to dispose of …

The Case For Repealing The Corporate Alternative Minimum Tax, Terrence R. Chorvat, Michael S. Knoll

All Faculty Scholarship

No abstract provided.

Enron, Sarbanes-Oxley And Accounting: Rules Versus Principles Versus Rents, William W. Bratton

All Faculty Scholarship

No abstract provided.

Anticompetitive Settlement Of Intellectual Property Disputes, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

All Faculty Scholarship

The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts …

Performance-Based Regulation: Prospects And Limitations In Health, Safety And Environmental Protection, Cary Coglianese, Jennifer Nash

All Faculty Scholarship

Regulation aims to improve the performance of individual and organizational behavior in ways that reduce social harms, whether by improving industry's environmental performance, increasing the safety of transportation systems, or reducing workplace risk. With this in mind, the phrase "performance-based regulation" might seem a bit redundant, since all regulation should aim to improve performance in ways that advance social goals. Yet regulators can direct those they govern to improve their performance in at least two basic ways. They can prescribe exactly what actions regulated entities must take to improve their performance. Or they can incorporate the regulation's goal into the …

New Models Of Regulation And Interagency Governance, Christopher S. Yoo

All Faculty Scholarship

No abstract provided.

Access To Networks: Economic And Constitutional Connections, Daniel F. Spulber, Christopher S. Yoo

All Faculty Scholarship

A fundamental transformation is taking place in the basic approach to regulating network industries. Policy makers are in the process of abandoning their century-old commitment to rate regulation in favor of a new regulatory approach known as access regulation. Rather than controlling the price of outputs, the new approach focuses on compelling access to and mandating the price of inputs. Unfortunately, this shift in regulatory policy has not been met with an accompanying shift in the manner in which regulatory authorities regulate prices. Specifically, policy makers have continued to base rates on either historical or replacement cost. We argue that …

“Head Start Works Because We Do”: Head Start Programs, Community Action Agencies, And The Struggle Over Unionization, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In the summer of 2002, the city of Boston watched a fierce battle unfold between low-wage workers who provide child care and the social service agencies that employ them. Boston requires its city contractors to pay more than twice the federal minimum wage of $5.15 an hour to their employees, according to the terms of the city's "living wage" ordinance. The social service agencies, which receive government subsidies to run their child care programs, claimed that they could not afford to pay this rate. These agencies mounted an intense legal and political campaign, arguing that they would be forced to …

The Politics Of Public Health: A Response To Epstein, Lawrence O. Gostin, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Conservatives are taking aim at the field of public health, targeting its efforts to understand and control environmental and social causes of disease. Richard Epstein and others contend that these efforts in fact undermine people’s health and well-being by eroding people’s incentives to create economic value. Public health, they argue, should stick to its traditional task—the struggle against infectious diseases. Because markets are not up to the task of controlling the transmission of infectious disease, Epstein says, coercive government action is required. But market incentives, not state action, he asserts, represent our best hope for controlling the chronic illnesses that …

Two Cheers For Gentrification, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The very word "gentrification" implies distaste. Advocates for the poor and ethnic minorities see affluent whites bidding up the prices for urban housing to levels that force poor families out, depriving them of affordable housing, perhaps rendering them homeless, and changing the character of a neighborhood from one that reflects distinct ethnic and class needs and cultural traditions into a bland emporium for expensive consumer goods. Sometimes historic preservation laws are indicted as particular culprits in setting this dynamic in motion. A result of these perceptions is that the legal literature on gentrification, in general, and historic preservation both reflect …

The Securities Analyst As Agent: Rethinking The Regulation Of Analysts, Jill E. Fisch, Hillary A. Sale

All Faculty Scholarship

Recent press has highlighted shocking examples of bias, self-dealing, and inaccuracy in the behavior of the securities analyst. Critics have attributed the bubble and subsequent crash in the technology sector to analyst hype and posited that undue analyst optimism contributed to scandals such as Enron. After many years of minimal regulator oversight analysts are now the subject of extensive regulatory reform proposals, including a mandate in the Sarbanes-Oxley Act of 2002 requiring that the Securities and Exchange Commission adopt a variety of restrictions on analyst behavior.

Despite the media attention, there have been few attempts to conceptualize carefully the analyst's …