Law Commons^™

Reforming Civil Rights With Systems Reform: Health Care Disparities, Translation Services, & Safe Harbors, Sidney D. Watson

All Faculty Scholarship

Looking gaunt but determined, 59 year-old Robert Tools was introduced on August 21, 2001, as a medical miracle-the first surviving recipient of a fully implantable artificial heart. At a news conference, Tools spoke with emotion about his second chance at life and the quality of his care. His physician looked on with obvious affection, grateful and honored to have extended Tools's life. Mr. Tools has since lost his battle for life, but will be remembered as a hero for undergoing an experimental technology and paving the way for other patients to undergo the procedure. Moreover, the fact that Tools was …

State Revocation Of Law Enforcement Officers' Licenses And Federal Criminal Prosecution: An Opportunity For Cooperative Federalism, Roger L. Goldman

All Faculty Scholarship

This article suggests ways that Department of Justice Attorneys who prosecute state and local law enforcement officers for violation of civil rights under 18 USC §§ 241 and 242 could use state laws that permit revocation of law enforcement officers’ licenses. Whereas federal criminal convictions of non-law enforcement defendants are close to 100%, statistics indicate that when law enforcement officers are go to trial in federal court, the conviction rate is closer to 50%. Thus, if a jury is unlikely to convict because of its natural sympathies towards the officer, prosecutor should seriously consider permitting the officer to agree to …

Japan's New System Of Mixed Courts: Some Suggestions Regarding Their Future Form And Procedures, Stephen C. Thaman

All Faculty Scholarship

This article briefly describes the history of jury courts and lay participation in various countries, and the inter-related political and procedural reasons for introducing lay participation. It specifically focuses on the introduction of lay participation in application to Japan’s new mixed court system.

A Tribute To Gene W. Matthews, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Conference Center, across the street from the Centers for Disease Control and Prevention (CDC) on Clifton Road in Atlanta, I sat on a leather sofa with one of my oldest, dearest friends-Gene Matthews, Legal Adviser to the CDC. Gene asked to meet me to talk about how we might invigorate the field of public health law. Matthews and his colleagues at CDC were hatching an idea to commence a grass-roots movement in public health law.

When Terrorism Threatens Health: How Far Are Limitations On Personal And Ecomonic Liberties Justified, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The government is engaged in a homeland-security project to safeguard the population's health from potential terrorist attacks. This project is politically charged because it affords the state enhanced powers to restrict personal and economic liberties. Just as governmental powers relating to intelligence, law enforcement, and criminal justice curtail individual interests, so too do public health powers.

Can Federal Agencies Authorize Private Suits Under Section 1983 - A Theoretical Approach, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article offers a few thoughts on the theory of regulatory enforcement under § 1983. Section 1983, I argue, itself authorizes federal agencies to make their regulations privately enforceable. In recent years, the Supreme Court has announced that federal norms are unenforceable in the absence of clear statutory authorization - a "clear statement rule" for private rights of action. Drawing on key tenets of modern statutory interpretation, I claim that the plain text of § 1983 allows many federal regulations to meet this test. Because § 1983 has an important function in coordinating state regulatory efforts with federal law, a …

American Servicemembers' Protection Act Of 2002, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

On July 1, 2002, the Rome Statute of the International Criminal Court ("ICC") entered into force, establishing the first permanent international criminal tribunal. Although seventy-six countries had ratified the Rome Statute by that date, the United States was not among them. Instead, Congress responded to the creation of the ICC by passing a bill sponsored by House Majority Whip Tom DeLay (R-Tex.) that Republican legislators had been trying to get through the House and Senate for several years. On August 2, 2002, the American Servicemembers' Protection Act of 2002 ("ASPA") became law. The Act was designed to prevent United States …

Conspiracy Theory, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justification for the legal prohibition against conspiracy, centering on psychological and economic accounts. Advances in psychology over the past thirty years have demonstrated that groups cultivate a special social identity. This identity often encourages risky behavior, leads individuals to behave against their self-interest, solidifies loyalty, and facilitates harm against non-members. So, too, economists have developed sophisticated explanations for why firms promote …

Brown V. Board Of Education: 50 Years Later, Dana M. Malkus

All Faculty Scholarship

In Brown v. Board of Education, the U.S. Supreme Court unanimously concluded that the doctrine of “separate but equal” had no place in public education. That decision on May 17, 1954 initiated educational reform throughout the country and was a catalyst in launching the modern Civil Rights movement. Though Brown signaled the beginning of the end of de jure segregation in the United States, events since reveal that – one-half century later – the work is far from complete. On Friday, October 10, 2003, scholars, students, and practitioners joined together at Saint Louis University School of Law for a full-day …

On Canonical Transformations And The Coherence Of Dichotomies: Jazz, Jurisprudence, And The University Mission, Barbara K. Bucholtz

University of Richmond Law Review

No abstract provided.

Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin

University of Richmond Law Review

No abstract provided.

Walking The Talk Of Trust In Human Subjects Research: The Challenge Of Regulating Financial Conflicts Of Interest, Robert Gatter

All Faculty Scholarship

There has been a call for more stringent regulation of financial conflicts of interest in human subjects research following the deaths of several individuals who volunteered to participate in human subjects research, which deaths were linked to the financial conflicts of interest of participating researchers and research institutions. Each proposal argues that regulation is necessary to restore trust in medical research. This Article examines whether proposed strategies for regulating financial conflicts of interest are likely to achieve the goal of a trustworthy human research enterprise. It does not question whether enhancing trustworthiness is an appropriate goal; rather, it assumes that …

More Disagreement Over Human Dignity: The Federal Constitutional Court's Most Recent Benetton Advertising Decision, Craig T. Smith

Faculty Publications

No abstract provided.

The Proposed New Technology Transfer Block Exemption: Is Europe Really Better Off Than With The Current Regulation?, Maurits Dolmans, Anu Bradford

Faculty Scholarship

This article discusses the legal and economic foundations, as well as the practical implications of the Commission's proposal for a new technology transfer block exemption regulation ("TTBER'') and associated Guidelines.

The article concludes that the new TTBER brings desirable flexibility to the assessment of the competitive effects of technology licensing agreements by abolishing the current division of the clauses into four categories of exempted, white, black and grey clauses. The Commission's proposal is also praised for extending the scope of the Regulation to software copyright licences and for exempting some efficiency-enhancing restrictions that currently fall outside of the TTBER. The …

An Appreciation Of Jonathan I. Charney, Lori Fisler Damrosch

Faculty Scholarship

Jon Charney preceded me into the academic world by a dozen years and already had a well-established reputation in international law when I was a brand-new law teacher. At the time we met in 1984, Jon was tackling some of the most ambitious topics in the theory and practice of international law, and he reached out to others for collegial engagement on those subjects. From the mid-1980s, he and I worked together on three collaborative books and on many projects for the American Society of International Law and the American Journal of International Law.

Preface, Jerri Shepard

Journal of Hate Studies

There are many people who would rather not look at the issue of hate, and cannot understand why there is a need for an Institute for Action Against Hate. In the struggle to combat hate, it must be identified—and named for what it is—before it can be prevented. Gonzaga University’s Institute for Action Against Hate was founded in 1998 with the purpose of fighting hate through education, research, and advocacy. Its genesis derived from concerns surrounding the apparent increase in the phenomenon of hate—especially racial and religious hate—as it manifested itself on campuses and in communities throughout the country. The …

The Role The Dutch Reformed Church Played In The Rise And Fall Of Apartheid, Jennifer Nelson

Journal of Hate Studies

The history of the Dutch settlers (later to become the Afrikaners), bound to their strong Calvinistic beliefs, became the cornerstone of white South African history in the nineteenth and twentieth centuries. The Great Trek (the emigration from the Eastern Cape Colony into the interior of Southern Africa by some 12,000 to 14,000 Dutch-speaking farmers between 1834 and the early 1840s) is regarded by Afrikaners as a central event of their history and the origin of their nationhood. It was during The Great Trek that the Afrikaans language and their unique culture developed. It was during this period that the Afrikaners’ …

A Century Of Genocide: Utopias Of Race And Nation, Beth Greenbaum

Journal of Hate Studies

Driven by thirst after just arriving at Auschwitz, told he can’t even break off an icicle to suck, Primo Levi asks, “Why?” A guard answers, “There is no ‘why’ here.” Why did this happen? Why did the Holocaust happen? Why do other genocides continue to happen? Eric D. Weitz, in his book A Century of Genocide: Utopias of Race and Nation, suggests a nation’s attempt to create a utopian society leads to genocide. His answer to this unanswerable, almost unaskable question—why—is courageous and fruitful.

A Civics Action: Interpreting Adequacy In State Constitutions Education Clauses, Joshua Gupta-Kagan

Faculty Scholarship

The antipathy of federal and state courts toward equal protection arguments in lawsuits challenging the public funding of education have forced education activists to search for alternative doctrinal hooks as they continue to seek reform in states' funding and management of schools. These activists have turned to state constitutions' education clauses, which impose duties on state governments to provide an "adequate" education for all children in the state. However, the art of defining and measuring an "adequate" education has advanced little beyond its state in 1973, when Justice Thurgood Marshall found the term unhelpful. In this Note, Josh Kagan surveys …

Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer

Faculty Scholarship

The capital structures of venture capital-backed U.S. companies share a remarkable commonality: overwhelmingly, venture capitalists make their investments through convertible preferred stock. Not surprisingly, much of the academic literature on venture capital has sought to explain this peculiar pattern. Financial economists have developed models showing, for example, that convertible securities efficiently allocate control between the investor and entrepreneur,signal the entrepreneur's talent and motivation, and align the incentives of entrepreneurs and venture capitalists.

In this Article, we examine the influence of a more mundane factor on venture capital structure: tax law. Portfolio companies issue convertible preferred stock to achieve more favorable …

Racial And Ethnic Profiling: Statutory Discretion, Constitutional Remedies, And Democratic Accountability, Sujit Choudhry, Kent Roach

Osgoode Hall Law Journal

Given the prominence of the issue of racial, ethnic, and religious profiling in the public debate about terrorism, it is significant that Canada's two legislative responses to September 11 - the Anti-terrorism Act and the proposed Public Safety Act - are silent on the issue, neither explicitly authorizing profiling nor expressly banning it. In this article, we focus on the constitutional remedies available for profiling in the face of these statutory silences, and the implication that the choice of remedies holds for both remedial efficacy and democratic accountability. Contrary to the position held by the majority of the Supreme Court …

Anger And Intent For Murder: The Supreme Court Decisions In R. V. Parent, Joanne Klineberg

Osgoode Hall Law Journal

In R v. Parent, the Supreme Court of Canada recently held that intense anger alone is not, of itself, a defence to murder, although anger does play a role in reducing murder to manslaughter in connection with the defence of provocation. The Court's brief decision ignores twenty years of contrary jurisprudence and fails to provide detailed reasons for its conclusion, resulting in uncertainty about the scope and application of the decision. In this article, the author explores the relationship between anger and intent for murder, and outlines some possible arguments the Court could have relied on that would have provided …

Financial Collapse And Class Status: Who Goes Bankrupt?, Elizabeth Warren

Osgoode Hall Law Journal

Every policy prescription, economic analysis, or news report about consumer bankruptcy rests on one or another unspoken image of the estimated 1.5 million families that will file in a single year. Data from the 2001 Consumer Bankruptcy Project permit a systematic analysis of the composition of those who file for personal bankruptcy, focusing on their education, occupation, and home ownership status. These attributes serve as a proxy for class identification. Based on these indicia, more than 90 per cent of the families in bankruptcy qualify as middle class. These data are a powerful reminder that whatever else might be said …

Victim Impact Evidence: Hard To Find The Real Rules, Robert P. Mosteller

Faculty Publications

No abstract provided.

Federal Judicial Selection As War: Part Iii --The Role Of Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Agora (Continued): Future Implications Of The Iraq Conflict: Editors' Note, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

This Agora continues the discussion of future implications of the Iraq conflict begun in the previous issue of the Journal. While the contributions to the first installment of the Agora concentrated mainly on the decision to initiate combat against Iraq in spring 2003 and the implications thereof for the restraints on use of force in the UN Charter and customary international law, the present pieces shift the focus to the management of the transition within Iraq in the aftermath of the military intervention.

Private Lawyers And Environmental Justice, Michael B. Gerrard

Faculty Scholarship

A private lawyer representing a private client is seldom a crusader. When environmental justice is relevant to a particular matter – the client proposes to build a facility and engages the lawyer to help secure necessary governmental approvals, for example-the lawyer's primary duty must be to the client.

The client in such a case faces two primary types of questions: substantive, such as where and how to build the facility; and procedural, deciding what processes to follow and how much to involve the community in the planning. Typically, by the time the lawyer is brought in, the client already has …

Correctional Services Corporation V. Malesko: Unmasking The Implied Damage Remedy, Matthew G. Mazefsky

University of Richmond Law Review

No abstract provided.

Proximate Cause And The American Law Institute: The False Choice Between The "Direct-Consequences" Test And The "Risk Standard", Michael L. Wells

University of Richmond Law Review

No abstract provided.

Tax Stories And Tax Histories: Is There A Role For History In Shaping Tax Law?, Reuven S. Avi-Yonah

Reviews

The teaching of law is usually rather ahistorical. Teachers commonly focus on current doctrine and policy debates, discarding on the "garbage pile of history" any law that has been repealed or superseded. And yet, much of law teaching is still based on reading cases. And cases are by definition historical artifacts - they arise from a specific time and place, and reflect a frequently long-gone historical context. Thus, it is hard to imagine a modern law course completely devoid of history, even if the history gets short shrift. A constitutional law course, for example, will likely include some discussion of …