Law Commons^™

Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal …

Self-Defense And Subjectivity, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

The law of self-defense has rarely produced as much academic or popular heat as it has in the past two decades. Widely publicized trials, such as the Goetz and Menendez cases, have generated deep-seated fears of a law unmoored from principle. Those fears have generated a standard public critique--that the criminal law has become too soft and subjective, too wedded to syndrome science and prone to weak-kneed affection for defendants. The criminal law has lost its "objectivity," so the argument goes. The poster child, and even the alleged cause of this development, is the battered woman.

In this article, the …

Securities Fraud In Cyberspace: Reaching The Outer Limits Of The Federal Securities Laws, Constance Z. Wagner

All Faculty Scholarship

This article discusses the increasing use of the Internet for securities transactions, the growth of securitiesfraud perpetrated through that medium and the Securities and Exchange Commission (“SEC”) enforcement program initiated to combat it. The author critiques the position taken by the SEC that the existing anti-fraudprovisions of the federal securities laws can be stretched to cover Internet fraud. Using an enforcement action brought by the SEC against an online stock trading guru named Tokyo Joe as an example of the confused jurisprudence that results when pre-cyberspace law is applied to securities fraud in cyberspace, the author proposes a different regulatory …

Miranda In Comparative Law, Stephen C. Thaman

All Faculty Scholarship

Not only have the Miranda warnings become a recognized procedure in police interrogations in the United States, but they have been adopted or strengthened over the years in formerly inquisitorial countries like Germany, Italy, Spain and most recently France, and are now recognized as having constitutional status. This article discusses the protections afforded to criminal suspects and defendants overseas when faced with interrogation by police, prosecutors, investigating magistrates or judges of the investigation. It compares the admonitions given to such suspects with those provided in the Miranda decision and discusses their constitutional, or statutory status. It further discusses when such …

Comparative Criminal Law And Enforcement: Russia, Stephen C. Thaman

All Faculty Scholarship

This chapter assesses criminal law and enforcement in Russia. It addresses the history of the Russian criminal justice system and its reform, as well as Russia’s criminal procedure and substantive criminal law.

A Vision Of Health And Human Rights For The 21st Century: A Continuing Discussion With Stephen P. Marks, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Professor Marks offers an eloquent vision of health and human rights in the 21st Century. As the Director of the Francois-Xavier Bagnoud Center for Health and Human Rights, Professor Marks ably carries the torch that Jonathan Mann lit in the field until his tragic death on September 2, 1998. Professor Marks stands along with the leading figures in health and human rights - e.g., Audrey Chapman, Sofia Gruskin, Michael Kirby, Daniel Tarantola, Brigit Toebes, Katarina Tomasevski, and Virginia Leary.

Surrogacy From The Perspectives Of Economic And Civil Liberties, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The field of law and economics, of which Judge Posner is the leading theorist, has offered a rich and sophisticated framework for thinking about a wide variety of problems at the interface of law and society. The theory, based on economic principles for understanding behavioral incentives and disincentives, is widely taught in law schools and is influential in scholarship. I have not always agreed with the application of the theory to complex problems of individual and group behavior, yet I constantly have been impressed with the elegance of the writing and analysis.

Judge Posner thinks about surrogacy arrangements in terms …

Public Health, Ethics, And Human Rights: A Tribute To The Late Jonathan Mann, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The late Jonathan Mann famously theorized that public health, ethics, and human rights are complementary fields motivated by the paramount value of human well-being. He felt that people could not be healthy if governments did not respect their rights and dignity as well as engage in health policies guided by sound ethical values. Nor could people have their rights and dignity if they were not healthy. Mann and his colleagues argued that public health and human rights are integrally connected: Human rights violations adversely affect the community's health, coercive public health policies violate human rights, and advancement of human rights …

Free Exercise Rights Of Capital Jurors, Brian Galle

Georgetown Law Faculty Publications and Other Works

The Supreme Court has said that the Constitution permits trial judges to exclude from the pool of potential capital trial jurors any persons whose views on the death penalty would likely substantially impair their ability to reach an impartial verdict. This Note argues that the Court's analysis to date is incomplete, in that it omits close evaluation of potential conflicts between such exclusions and the Free Exercise Clause. The Note argues further that a court should apply strict scrutiny to any state action, such as exclusion for cause, that burdens the use of religious beliefs in the mental processes of …

Dealing With Conflicts Of Interest In Biomedical Research: Irb Oversight As The Next Best Solution To The Abolitionist Approach, Jesse Goldner

All Faculty Scholarship

The author details the conflicts of interest facing individual investigators and research institutions and describes the current mechanisms, primarily focused at the relationship between the investigator and the research institution, to regulate these conflicts. The author finds these mechanisms insufficient and believes that the best approach is not to regulate conflicts, but to abolish them. The author acknowledges, however, that there is a lack of political will in an abolitionist approach. He proposes, therefore, institutional review board oversight at the level of the relationship between researcher and individual subjects as the next best solution.

Analysis Of Foreclosure In The Ec Guidelines On Vertical Restraints, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The antitrust treatment of vertical restraints is quite controversial. In the United States, for example, warring vertical restraints guidelines were issued by the Department of Justice and National Association of Attorneys General, a group of antitrust enforcers from the individual states. However, a consensus was never achieved and these guidelines never entered the mainstream. Compare them to the U.S. Horizontal Merger Guidelines, which have become a template for evaluation of horizontal restraints.

The new EC Guidelines on Vertical Restraints Guidelines ("GVRs") represent a significant effort to create and implement a consistent analytic framework for evaluating vertical restraints. The scope of …

Gender Based Violence As Judicial Anomaly: Between "The Truly National And The Truly Local", Deborah M. Weissman

Faculty Publications

No abstract provided.

The Issuer Choice Debate, Merritt B. Fox

Faculty Scholarship

This article responds to Professor Romano’s piece in this issue. It concerns our ongoing debate with regard to the desirability of permitting issuers to choose the securities regulation regime by which they are bound. Romano favors issuer choice, arguing that it would result in jurisdictional competition to offer issuers share value maximizing regulations. I, in contrast, believe that abandoning the current mandatory system of federal securities disclosure would likely lower, not increase, U.S. welfare. Each issuer, I argue, would select a regime requiring a level of disclosure less than is socially optimal because its private costs of disclosure would be …

Religion And American Political Judgments, Kent Greenawalt

Faculty Scholarship

This Article addresses the extent to which officials and citizens should rely directly on their religious convictions to reach political judgments and make political arguments. Reviewing opposing "exclusive" and "inclusive" positions, this Article suggests that officials generally should not articulate arguments in religious terms. Many officials should have a greater freedom to rely on religious bases of judgments, and private citizens should not regard themselves as constrained in the manner of officials. This approach, defended initially from the perspective of detached political philosophy, fits comfortably with a variety of overarching religious views. The constraints it suggests should be regarded as …

Title Vii And Religious Liberty, Kent Greenawalt

Faculty Scholarship

Title VII of the 1964 Civil Rights Act, which forbids religious discrimination in employment, raises in microcosm some extremely thorny questions about religious liberty; questions more familiar to most of us in constitutional settings. In focusing on these questions in their Title VII context, I am more interested in fundamental conceptual issues than in the precise details of what that law should be taken to provide.

Among the questions are: What is discrimination because of religion? How should religion be "defined"? How far should employers accommodate the religious exercise of workers? Under the First Amendment, how much accommodation can the …

Regulation Fd And Foreign Issuers: Globalization's Strains And Opportunities, Merritt B. Fox

Faculty Scholarship

The globalization of the market for securities has a persistent way of straining the traditional rationales for securities regulation. At the same time, the choices it forces upon us create the opportunity to better test empirically the desirability of the regulations being imposed. Regulation FD, which stands for "fair disclosure," is the most recent example where these twin effects of globalization arise. Regulation FD is arguably the most important change to the U.S. disclosure regime since the adoption of integrated disclosure almost two decades ago. Regulation FD is intended to stop the practice of "selective disclosure," whereby an issuer withholds …

The Role Of Law In The Functioning Of Federal Systems, George A. Bermann

Faculty Scholarship

Federal systems are about the distribution of legal and political power, but law is not only one of the currencies of federalism, it is also one of federalism's most important supports; this chapter considers the role that law plays in establishing and enforcing the system by which both legal and political power are distributed within the USA and the EU. Bermann explores the various ways in which the courts can, and choose to, enforce the principles of federalism beyond the classical ‘political’ and ‘procedural’ safeguards provided by the institutional structures themselves and the constraints on the deliberative process. He describes …

Norm Theory And The Future Of The Federal Appointments Process, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Impeachment Defanged And Other Institutional Ramifications Of The Clinton Scandals, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Why Supervise The Refugee Convention?, James C. Hathaway

Articles

The Refugee Convention is the only major human rights treaty that is not externally supervised. Under all of the other key UN human rights accords — on the rights of women and children, against torture and racial discrimination, and to promote civil and political, as well as economic, social, and cultural rights — there is at least some effort made to ensure that States are held accountable for what they have signed onto.

The Fate Of The Native Hawaiians: The Special Relationship Doctrine, The Problem Of Strict Scrutiny, And Other Issues Raised By Rice V. Cayetano, William E. Spruill

University of Richmond Law Review

Harold "Freddy" Rice is a Native Hawaiian in the sense that he was born in the Hawaiian Islands and can "trace[ ] his ancestry to two members of the legislature of the Kingdom of Hawaii, prior to the Revolution of 1893. " He is a taxpayer and a qualified elector of the United States, the State of Hawaii, and the County of Hawaii. When Rice applied to vote in the 1996 election for the trustees of the Office of Hawaiian Affairs ("OHA"), however, his application was denied. Why? Because, according to a state statute, he was not Hawaiian enough.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Giving New Meaning To "Handicap": The Americans With Disabilities Act And Its Uneasy Relationship With Professional Sports In Pga Tour, Inc. V. Martin, William E. Spruill

University of Richmond Law Review

Imagine that an all-star batter for the New York Yankees had a circulatory disease that made it difficult and painful for him to run. Would Major League Baseball be forced to permit a designated base runner to run for the disabled batter starting from home plate? Consider Jim Abbott, the successful major league pitcher who was born without a right arm. Under the Americans With Disabilities Act ("ADA"), could Abbott, who pitched well for many years in the American League, which has the designated hitter rule, force the National League, which does not, to exempt him from its batting requirement? …

Wielding The Ax Of Neutrality: The Constitutional Status Of Charitable Choice In The Wake Of Mitchell V. Helms, David J. Freedman

University of Richmond Law Review

During the past decade, the Supreme Court loosened restraints that it had previously imposed upon government aid to religious institutions. In 1996, Congress and the President seized upon this phenomenon and implemented a controversial provision in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996-also known as the Welfare Reform Act of 1996. Included among the various revolutionary provisions of this legislation is something known as Charitable Choice. This program authorizes states to contract with religious institutions to provide social welfare services on behalf ofthe states.

Dear Sir Or Madam: You Cannot Contract In A Closet, David J. Depippo

University of Richmond Law Review

This comment will examine this seemingly basic question through the lens of two recent Gateway cases. In Hill v. Gateway 2000, Inc., the Seventh Circuit held that the Standard Terms were part of the sales agreement, and thus, the consumer was bound by them. The United States District Court for the District of Kansas, in Klocek v. Gateway, Inc., however, held that the contract for sale had been made when the seller identified the computer for shipping, or at the very least, shipped the computer, and thus, the Standard Terms were merely proposals of additional terms to which the consumer …

Annual Survey Of Virginia Law: Corporate And Business Law, Lyman P.Q. Johnson

University of Richmond Law Review

This article reviews changes in Virginia corporate and business law for the period from June 2000 through May 2001. Part II examines legislative changes in corporate and other business statutes (excluding public service corporation and insurance law issues) based on Virginia General Assembly action in the 2001 session. Part III reviews judicial decisions during the year, including decisions addressing agency law, partnership law, and corporate law issues and principles. This article describes these decisions and, in several instances, it also critically analyzes the outcomes. Part IV summarizes a May 25, 2001, Order of the Virginia State Corporation Commission amending the …

Annual Survey Of Virginia Law: Criminal Law And Procedure, William J. Dinkin, Cullen D. Seltzer

University of Richmond Law Review

Because a large amount of the docket for the Court of Appeals of Virginia is comprised of criminal cases, and since the General Assembly regularly turns its attention to the questions of crime and punishment, in almost any year there are a great number of substantial developments in the criminal law. This past year was no exception. This article surveys developments in criminal law and procedure in Virginia from July 2000 to July 2001. Although this article is intended to survey significant developments over the past year, the reader is cautioned to bear in mind several important caveats.

Annual Survey Of Virginia Law: Election Law, Christopher R. Nolen

University of Richmond Law Review

Depending on your perspective or partisan persuasion, the 2000 presidential election was either an overwhelming triumph of the American electoral system or an abysmal example of justice. Regardless, the recount in Florida caught the attention of the citizens of the nation, and in particular, the legislators in many states. The question, "could 'Florida' happen here?" prompted many in the Virginia General Assembly to cast a scrutinizing eye upon the Commonwealth's election laws. As a result, over one hundred legislative bills and resolutions were introduced in the 2001 Regular Session.' This article surveys the developments in Virginia's election laws from June …

Annual Survey Of Virginia Law: Labor And Employment Law, Thomas M. Winn Iii

University of Richmond Law Review

This article discusses six areas of labor and employment law in which there was significant activity in Virginia's courts over the past year: (1) covenants not to compete and employee's fiduciary duties to employers; (2) the doctrine of respondeat superior; (3) negligent hiring, retention, and supervision; (4) wrongful discharge in violation of public policy; (5) workers' compensation exclusivity; and (6) employment agreements. Beyond the scope of this article are decisions rendered in other areas of law that affect the employment relationship, including defamation, claims under Virginia's Occupational Safety and Health Act, public employment claims, and unemployment compensation claims.

Annual Survey Of Virginia Law: Family Law, Elizabeth P. Coughter, Ronald R. Tweel

University of Richmond Law Review

The most significant case decisions regarding family law issues in Virginia this year are those cases involving the preemptive effect of federal law on equitable distribution issues. These cases held that federal law preempts state law when beneficiary provisions of certain insurance policies and retirement plans are being determined. Other important decisions struck down the self-executing provisions of property settlement agreements regarding the payment of child support. Additionally, a decision by the Court of Appeals of Virginia would have abrogated all property settlement agreements endorsed prior to 1998 were it not for a subsequent statutory modification.