Law Commons^™

Attention Must Be Paid: Commercial Speech, User-Generated Ads, And The Challenge Of Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, …

Adaptation To The Health Consequences Of Climate Change As A Potential Influence On Public Health Law And Policy: From Preparedness To Resilience, Lindsay F. Wiley

Georgetown Law Faculty Publications and Other Works

Because the health effects of climate change are likely to be significant and far-reaching, a key component of climate change adaptation will be our public health infrastructure. Perhaps counter-intuitively, recent emphasis in public health law on preparedness for extraordinary events may be to the detriment of our ability to cope with the health impacts of climate change. While existing emergency preparedness law will necessarily be an important backdrop for health-focused climate change adaptation efforts (especially with regard to natural disasters and infectious disease outbreaks), the focus on emergency preparedness in recent years does not necessarily situate us well for handling …

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi Short, Michael W. Toffel

Georgetown Law Faculty Publications and Other Works

Using data from a sample of U.S. industrial facilities subject to the federal Clean Air Act from 1993 to 2003, this article theorizes and tests the conditions under which organizations’ symbolic commitments to self-regulate are particularly likely to result in improved compliance practices and outcomes. We argue that the legal environment, particularly as it is constructed by the enforcement activities of regulators, significantly influences the likelihood that organizations will effectively implement the self-regulatory commitments they symbolically adopt. We investigate how different enforcement tools can foster or undermine organizations’ normative motivations to self-regulate. We find that organizations are more likely to …

Implementing Public Health Regulations In Developing Countries: Lessons From The Oecd Countries, Lawrence O. Gostin, Emily A. Mok, Monica Das Gupta, Max Levin

Georgetown Law Faculty Publications and Other Works

The enforcement of public health standards is a common problem in many developing countries. Public health agencies lack sufficient resources and, too often, enforcement mechanisms rely on slow and erratic judicial systems. These limitations can make traditional public health regulations difficult to implement. In this article, we examine innovative approaches to the implementation of public health regulations that have emerged in recent years within OECD countries. These approaches aim to improve compliance with health standards, while reducing dependence on both the legal system and the administrative resources of public health agencies.

This article begins by discussing some traditional forms of …

National And Global Responsibilities For Health, Lawrence O. Gostin, Mark Heywood, Gorik Ooms, Anand Grover, John-Arne Røttingen, Wang Chenguang

Georgetown Law Faculty Publications and Other Works

Preventable and treatable injuries and diseases are overwhelming sub-Saharan Africa, the Indian subcontinent, and other impoverished areas of the world. Why are health outcomes among the world’s poor so dire after the first decade of the Millennium Development Goals (MDGs) and despite a quadrupling of international health assistance over the past two decades? We believe that this dynamic can change by establishing clearer understandings of, and forging consensus around and governance structures to support, national and global responsibilities to improve global health.

With the goal of a new post-MDG global health paradigm, we are establishing the Joint Action and Learning …

Rights Talk And Patient Subjectivity: The Role Of Autonomy, Equality And Participation Norms, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Patients themselves have transformed the role of the patient in the health care system, making it far more complex than it ever has been before. As a result, the conceptual root of our contemporary understandings of “patient” is an assumption of autonomous subjectivity, i.e., of an individual aware of and capable of acting on her choices for medical care. The Symposium on Patient-Centered Health Law and Ethics of which this Article is a part considers the most recent stage in this evolution of meanings: the concept of patient-centeredness, with its implication of provider deference to the patient’s perspective. Throughout the …

Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …

Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

With the nomination of Elena Kagan to be a justice of the United States Supreme Court, it is quite possible that eight of the nine justices will have graduated from only two law schools—Harvard and Yale. This article frames this development in the historical context of the legal education of those justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently represented among …

Paradigm Shifts In International Justice And The Duty To Protect; In Search Of An Action Principle, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article places the emerging “responsibility to protect” within the historical development of international human rights and criminal law, while also attempting to more fully theorize the responsibility to ensure that it can be a basis for action in the face of a state’s commission of atrocities against its citizens. The main point of departure concerns the issue of “right authority” at that point in time when a coercive intervention is justified. Rather than rely solely on the Security Council in these situations, this article contends that unilateral and multilateral action must be countenanced by a fully theorized “responsibility to …

Opting Out Of The Law Of War: Comments On 'Withdrawing From International Custom', David Luban

Georgetown Law Faculty Publications and Other Works

This paper is a response to Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale LJ 202 (2010), which argues against the "Mandatory View" (according to which states are bound by customary international law with no possibility of opting out), and in favor of a "Default View" which permits states to opt out of international custom unilaterally. My response offers the following arguments: (1) Currently, the most significant contested issue about customary international law in U.S. discourse concerns the laws of war -- a topic that Bradley and Gulati treat only briefly and incidentally. Their proposal would …

The Perils Of Empowerment, Jane H. Aiken, Katherine Goldwasser

Georgetown Law Faculty Publications and Other Works

This Article examines bystander norms of disinterest and blame that inform and undermine strategies for dealing with significant social problems such as domestic violence. Current strategies rely on individual “empowerment” to reduce such violence. These strategies reflect fundamental misconceptions and false assumptions about the nature of domestic violence, about why this sort of violence persists so stubbornly, and, ultimately, about what it takes to change behavior that has long been tolerated, if not actually fostered, as a result of deeply imbedded social and cultural norms. The net effect is that far from empowering abused women, let alone reaching the norms …

The Interpretation-Construction Distinction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly!

The basic idea can be explained by …

The Parent As (Mere) Educational Trustee: Whose Education Is It, Anyway?, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

The purpose of this Article is two-fold. First, the Article argues that the parent’s right to educate his or her children is strictly circumscribed by the parent’s duty to ensure that children learn habits of critical reasoning and reflection. The law has long recognized that the state’s duty to educate children is superior to any parental right. Indeed, the “parentalist” position to the contrary rests on an inflation of rights that is, in fact, a radical departure from longstanding legal norms. Indeed, at common law the parent had “a sacred right” to the custody of his child, and the parent’s …

Rethinking The Future Of The Colorado River: Draft Interim Report Of The Colorado River Governance Initiative, Colorado River Governance Initiative, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program

Books, Reports, and Studies

117 p. : ill. (some color), color maps ; 29 cm

Comparative Law: Problems And Prospects, David Snyder

Scholarly Articles in Law Reviews & Journals

The following is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Académie Internationale de Droit Comparé). The remarks were given in a mix of French and English, but for ease of reading the transcript below is almost entirely in English.

Writer's Block: Why Punctuation Matters, Part Two, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Grooming Good Legal Writers Through Tailored, Constructive Feedback, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

International Disparities Panel, Sean Flynn

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Adaptation To The Health Consequences Of Climate Change As A Potential Influence On Public Health Law And Policy: From Preparedness To Resilience, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Because the health effects of climate change are likely to be significant and far-reaching, a key component of climate change adaptation will be our public health infrastructure. Perhaps counter-intuitively, recent emphasis in public health law on preparedness for extraordinary events may be to the detriment of our ability to cope with the health impacts of climate change. While existing emergency preparedness law will necessarily be an important backdrop for health-focused climate change adaptation efforts (especially with regard to natural disasters and infectious disease outbreaks), the focus on emergency preparedness in recent years does not necessarily situate us well for handling …

The Impact Of The Financial Crisis On Trade And Investment, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The U.S. Rulemaking Process: Has It Become Too Difficult?, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

The modem process for making administrative policy-the informal, notice-and-comment rulemaking process-was developed in the U.S. when the Administrative Procedure Act (APA) was enacted in 1946. The "notice-and-comment" label derives from the fact that the APA requires: publication of a notice of proposed rulemaking, opportunity for public participation in the rulemaking by submission of written comments, publication of a final rule and accompanying explanation.

This applies to the substantive rulemaking of every agency of the federal government and provides the procedural minimum for most significant rulemakings. More elaborate public procedures such as oral hearings may be used voluntarily by agencies in …

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Climate Change And The Wto: Legal Issues Concerning Border Tax Adjustments, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Climate change is a multi-faceted discussion: for the trading community, one of many contentious issues in the policy debate over how to deal with greenhouse gas (GHG) emissions is the appropriate role of Border Carbon Adjustments (BCAs)/Border Tax Adjustments (BTAs). The role of BCAs has been analyzed in a very large policy discussion literature, as well as in a significant number of academic writings in both law and economics. One can safely summarize the state of each of these literatures as bewildering: in the legal literature there is still no consensus as to whether such measures are legal under the …

A Conversation About Problem-Solving Courts: Take 2, Jane M. Spinak

Faculty Scholarship

The University of Maryland Law Journal of Race, Religion, Gender and Class symposium on problem-solving courts surfaced a wide array of issues on the meaning and practices of these courts. My prepared remarks at the symposium addressed the first issue discussed in this article: the potential disparate impact of problem-solving courts on minority families who are disproportionately affected by these court processes. The second part of the article draws on the discussion during the symposium to reflect on the difficulty supporters and critics of the problem-solving court movement have in talking and listening to each other.

Love As Legal Methodology: Comments On Love In A Time Of Envy, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In academic papers about emotion, it is not uncommon to find a kind of disconnect between the detachment of theoretical and scholarly language and the subject of the paper--the emotions. One of the lovely, and challenging, aspects of Jonathan Goldberg-Hiller's article is that it not only conveys the emotions that are its subject, but it brims with its own emotion; it reads like a text written out of shattered love. Goldberg-Hiller takes up Jean-Luc Nancy's contention that "love is shattered by its very essence. It fragments the self at the same time as it refracts into many forms." Goldberg-Hiller understands …

Where Credit Is Due: Advantages Of The Credit-Invoice Method For A Partial Replacement Vat, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

If a value-added tax (VAT) were chosen to supplement or replace some portion of the revenue from the income tax, a choice would likely be made between the credit-invoice method and the subtraction-method for calculating VAT liability. Credit-invoice method VATs and subtraction-method VATs are, at a conceptual level, very similar taxes. The key substantive difference between most subtraction-method VAT proposals and extant credit-invoice method VATs is that subtraction-method VAT proposals generally do not impose an invoice requirement. The invoice requirement substantially reduces tax avoidance opportunities in the VAT, and also ensures the ability to provide appropriate treatment for exports while …

The Closed Rule, Michael Doran

Georgetown Law Faculty Publications and Other Works

The closed rule constitutes a critical component of managerial power in the contemporary House of Representatives and an increasingly important element of the legislative process. Subject to the approval of the full membership, the closed rule allows managers to block all amendments to a measure when bringing that measure to the floor. Despite objections from the minority, both Republicans and Democrats regularly use the closed rule when in the majority, and rank-and-file members ordinarily approve any closed rule put to a floor vote. Once rarely used, the closed rule has become managers’ preferred instrument for controlling the House floor agenda. …

Corporate Environmental Social Responsibility: Corporate "Greenwashing" Or A Corporate Culture Game Changer?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article focuses on the extent to which unenforceable voluntary initiatives undertaken by corporations can change corporate behavior to make businesses more environmentally responsible, i.e. not only comply with the law, but to do more than the law actually requires of them. These initiatives, loosely gathered under the umbrella of a movement called corporate social responsibility (CSR), are often proposed by the government as a way to fill regulatory and enforcement gaps or by industry, often as an alternative to regulatory requirements. In each case, their goal is to improve the compliance record of businesses and, in some cases, to …

The Stories We Tell, And Have Told, About Tribal Sovereignty: Legal Fictions At Their Most Pernicious, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Starting with Chief Justice John Marshall and continuing through to the present Supreme Court, the story of Indian sovereignty has been consistent—it exists only in the most diminished form. Some reasons for this have been premised on the incapacity of Indians to self-govern; others on theories of federalism; while still others on the ambitions of non-Indians. However, the factual premises behind the concept of diminished sovereignty are baseless—legal fictions about the conquest of Indians and their nature. These fictions originated in Chief Justice Marshall’s Indian Law Trilogy and should have vanished long ago when their original purposes were fulfilled, like …

Introduction: The Adequacy Of The Presidential Succession System In The 21st Century: Filling The Gaps And Clarifying The Ambiguities In Constitutional And Extraconstitutional Arrangements, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Inevitably, the events of the day dominate the political agenda. The issues of presidential succession have been attended to in our national history only sporadically because, at most times, the question of who succeeds the President in cases of death, resignation, or incapacity does not have immediate relevance: the President is in good health, the presumption is he will serve out the term of his office for which he was elected, and political leaders ignore succession issues as if they were of only theoretical interest. And yet, again and again, succession questions have become of the most immediate consequence in …