Law Commons^™

Health Care: Why Jurisdiction Matters, Kevin C. Walsh

Scholarly Articles

Congress’s enactment of comprehensive healthcare reform legislation last year was the culmination of one round of an intense debate that continues today. The second round began the same day that the first round ended, when President Obama signed the legislation. In this second round, the locus of debate has shifted from Congress to the courts, which are processing a slew of lawsuits filed immediately after enactment.

One of the most prominent is Virginia v. Sebelius. The lawsuit presents on its face a prominent and critically important question of federalism: Did Congress exceed the limits of its enumerated legislative powers by …

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Scholarly Articles

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in …

Resurrecting The Bogeyman: The Curious Forms Of The Substantial Burden Test In Rluipa, Adam J. Macleod

Scholarly Articles

In 2000 Congress revived strict scrutiny review of regulations that substantially burden religious land use when it enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). Many worry that RLUIPA creates a blanket exemption for religious institutions from neutral laws of general application, and that it threatens principles of federalism. A decade of experience with RLUIPA shows that these fears are unfounded. Indeed, the United States Courts of Appeals have gone out of their way to constrain the reach of RLUIPA's substantial burden provision. They have imposed upon the provision some creative interpretations, many of which are inconsistent with …

The Legal Academy As Dinner Party: A (Short) Manifesto On The Necessity Of Inter-Interdisciplinary Legal Scholarship, Paul Stancil

Faculty Scholarship

This Article explores the need for an increase in inter-interdisciplinary legal scholarship, suggesting that legal scholars from different traditions and backgrounds need to sit down at the same table and start talking to one another. The author presents an argument in favor of an integrated model of legal scholarship in which norms of intellectual modesty and cooperation fuel the development of interdisciplinary work. He develops a functional hierarchy which allows scholars to start with the first, threshold question, then work down to the operational details as they carefully consider our accumulated learning about why and how people actually act. After …

The Reason Behind The Rules: From Description To Normativity In International Criminal Procedure, Noah Weisbord

Faculty Publications

As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.

This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure …

The Latin American Tradition Of Legal Failure, Jorge L. Esquirol

Faculty Publications

No abstract provided.

Irish Business And Society: Governing, Participating And Transforming In The 21st Century, John Hogan, Paul Donnelly, Brendan O'Rourke

Books/Book Chapters

Irish Business and Society is a contemporary exploration of the wide-ranging debates surrounding the relationships between business and society in 21^st century Ireland, providing a context in which to question and inform our perspectives on both. The book consists of diverse and thought-provoking contributions from leading business researchers, economists, sociologists and political scientists from Ireland and abroad, which address five central themes:

-- The Making and Unmaking of the Celtic Tiger

-- Governance, Regulation & Justice

-- Partnership & Participation

-- The nature of Irish Borders within Ireland, Europe & the Wider World

-- Interests & Concerns in Contemporary …

The Innocence Rights Of Sentenced Offenders, Mary Rogan

Articles

Civil orders which take effect after a person has been released from a sentence of imprisonment have become more common features of Irish law. Despite representing a major departure from the principle that when a person has served a sentence the state has no further „call‟ on that person, such orders have received limited attention. This article examines some of these new orders, in particular section 26 and section 26A of the Criminal Justice Act 2007. It argues that these orders should be of concern, suggesting that they are likely to act as barriers to reintegration of ex-prisoners, represent a …

Criminalizing Corporate Killing: The Irish Approach, Bruce Carolan

Articles

The debate on criminal corporate liability in the United States might benefit from a comparative perspective: How have other countries treated the criminal liability of corporate entities? This benefit might be enhanced by focusing on a country with a similar legal heritage to the United States—a country with a common law legal system inherited from the British. And, it would help if that country were concurrently examining the issue of criminal corporate liability. Interesting questions might include: What issues dominate the debate? How are issues of punishment, reparations, and rehabilitation handled? Is a legislative approach contemplated? The purpose of this …

Is Legal Scholarship Out Of Touch? An Empirical Analysis Of The Use Of Scholarship In Business Law Cases, Michelle M. Harner, Jason A. Cantone

Faculty Scholarship

Commentators have observed two apparent trends in the use of legal scholarship by the judiciary. First, judges now cite law review articles in their opinions with less frequency. Second, despite this general decline in the invocation of legal scholarship, judges now cite articles in specialty journals with more frequency.

Some commentators attribute the apparent decline in the courts’ use of legal scholarship to the increasingly theoretical and impractical nature of that scholarship. A few studies even suggest that the increasing use of specialty journals by the courts reflects the gap between the content of legal scholarship in general law reviews …

Behind Closed Doors: The Influence Of Creditors In Business Reorganizations, Michelle M. Harner, Jamie Marincic

Faculty Scholarship

General corporate law delegates the power to manage a corporation to the board of directors. The board in turn acts as a fiduciary and generally owes its duties to the corporation and its shareholders. Many courts and commentators summarize the board’s primary objective as maximizing shareholder wealth. Accordingly, one would expect a board’s conduct to be governed largely by the interests of the corporation and its shareholders. Yet, anecdotal and increasing empirical evidence suggest that large creditors wield significant influence over their corporate debtors. Although this influence is most apparent as the corporation approaches insolvency, the strength of the creditors’ …

Activist Distressed Debtholders: The New Barbarians At The Gate?, Michelle M. Harner

Faculty Scholarship

The term “corporate raiders” previously struck fear in the hearts of corporate boards and management teams. It generally refers to investors who target undervalued, cash-flush or mismanaged companies and initiate a hostile takeover of the company. Corporate raiders earned their name in part because of their focus on value extraction, which could entail dismantling a company and selling off its crown jewels. Today, the term often conjures up images of Michael Milken, Henry Kravis or the movie character Gordon Gekko, but the alleged threat posed to companies by corporate raiders is less prevalent—at least with respect to the traditional use …

Environmental Law Goes Global: Taking Back Eden: Eight Environmental Cases That Changed The World, By Oliver A. Houck, Robert V. Percival

Faculty Scholarship

No abstract provided.

Will The Cftc Defy Congress's Mandate To Stop Excessive Speculation In Commodity Markets And Aid And Abet Hyperinflation In World Food And Energy Prices: Analysis Of The Cftc's Proposed Rules On Speculative Position Limits, Michael Greenberger

Faculty Scholarship

On January 26, 2011, the Commodity Futures Trading Commission issued the Notice of Proposed Rulemaking on Position Limits for Derivatives pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.  The proposed rules are designed to implement the historic Congressional mandate of the Commodity Exchange Act, as amended by Section 737 of the Dodd-Frank Act, to ban excessive speculation from the derivatives market, i.e., the speculation which exceeds the need for liquidity by commercial handlers hedging price risk in these markets. Section 737 is the result of multi-year consideration by Congress, during which a strong consensus was reached …

The Truth About Regulation In America, Rena I. Steinzor

Faculty Scholarship

The special interests leading the accelerating crusade against regulation have re-ignited a potent coalition of industry lobbyists, traditional conservatives, and grassroots Tea Party activists. The politicians speak in generic terms for public consumption: “the nation is broke,” “big government is bad,” “regulation costs trillions.” Behind the scenes, industry lobbyists target for repeal dozens of regulations that are designed to control pollution, ensure drug, product, and food safety, and eliminate workplace hazards. In an effort to bring light and air to an often misleading and always opportunistic national debate, this essay presents five truths about the state of health, safety, and …

Mitigating Financial Risk For Small Business Entrepreneurs, Michelle M. Harner

Faculty Scholarship

Financial distress by definition threatens a company’s viability. Entrepreneurial and start-up entities are particularly vulnerable to this threat. Yet, much of the discussion following the recent recession focuses almost exclusively on financial institutions and “too-big-to-fail” entities. This essay re-examines lessons gleaned from the recession in the context of smaller, entrepreneurial entities. Specifically, it analyzes how small business entrepreneurs might invoke principles of enterprise risk management to mitigate the long-term impact of financial distress on their business models. It also considers related refinements to extant small business regulations, including the U.S. bankruptcy laws. The essay’s primary objective is to help policymakers, …

Global Law And The Environment, Robert V. Percival

Faculty Scholarship

This article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important …

China's "Green Leap Forward" Toward Global Environmental Leadership, Robert V. Percival

Faculty Scholarship

This article argues that China may be on the verge of a “Green Leap Forward” that could make it a global environmental leader. This article argues that two principal forces have contributed to this development. First, Chinese officials now realize that a global shift away from fossil fuels will create enormous business opportunities on a global scale. Chinese companies are now making enormous strides in the development of green technology, such as solar power, wind energy, and electric cars, with the active assistance of the Chinese government. Second, realizing that climate change severely threatens China, and stung by the criticism …

Too Big To Obey: Why Bp Should Be Debarred, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

A Global Parliament: Essays And Articles, Andrew L. Strauss, Richard A. Falk

School of Law Faculty Publications

Democracy is the guiding principle for fairly and peacefully making community decision at the local, provincial, and national levels of human society. In this compilation of works, Falk and Strauss argue for a practical approach to now finally extending democratic decision-making to the global system.

Is Saving An Innocent Man A "Fool's Errand"? The Limitations Of The Antiterrorism And Effective Death Penalty Act On An Original Writ Of Habeas Corpus, Krystal M. Moore

University of Dayton Law Review

No abstract provided.

Another Nail In The Coffin Of Religious Freedom? Christian Legal Society V. Martinez, Charles J. Russo, William E. Thro

Educational Leadership Faculty Publications

No abstract provided.

Applying The Rules Of Discovery To Information Uncovered About Jurors, Thaddeus A. Hoffmeister

School of Law Faculty Publications

As more and more personal information is placed online, attorneys are increasingly turning to the internet to investigate and research jurors. In certain jurisdictions, the practice has become fairly commonplace. One prominent trial consultant has gone so far as to claim, “Anyone who doesn’t make use of [internet searches] is bordering on malpractice.” While this may somewhat overstate the importance of investigating jurors online, it nonetheless demonstrates just how routine the practice has become. Aside from increased acceptance among practitioners, courts have both approved of and encouraged online investigation of jurors.

While many view this practice as a benefit to …

The Inherent Tension Between Value Creation And Value Claiming During Bargaining Interactions, Charles B. Craver

GW Law Faculty Publications & Other Works

When individuals negotiate, they must initially use the Information Stage to create value by discussing the different issues to be addressed and by exploring the interests underlying those items. They must be willing to disclose their basic interests if progress is to be made, but they are usually not entirely candid for strategic purposes. They may over-state the degree to which they want items they think the other side values and under-state the degree to which they want items they believe the other side does not value. They then move into the Distributive Stage to decide how their joint surplus …

A New Legal Theory To Test Executive Pay: Contractual Unconscionability, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Lucrative pay to corporate managers remains controversial yet continues to evade judicial scrutiny for legitimacy. Although many arrangements likely would pass the most rigorous scrutiny, it seems equally clear that some would not. Some agreements are not the product of arm’s-length bargaining, can rivet managers on short-term stock prices at the destruction of long-term business value, and can misalign manager-shareholder interests. Yet even such objectionable arrangements are immune from serious legal oversight. In theory, they are open to judicial review under corporate law, but shareholders challenging pay contracts face formidable procedural hurdles in derivative litigation and substantive obstacles from corporation …

Removing Property From Intellectual Property And (Intended?) Pernicious Impacts On Innovation And Competition, F. Scott Kieff

GW Law Faculty Publications & Other Works

Commentators have poured forth a loud and sustained outcry over the past few years that sees property rule treatment of intellectual property (IP) as a cause of excessive transaction costs, thickets, anticommons, hold-ups, hold-outs, and trolls, which unduly tax and retard innovation, competition, and economic growth. The popular response has been to seek a legislative shift towards some limited use of weaker, liability rule treatment, usually portrayed as “just enough” to facilitate transactions in those special cases where the bargaining problems are at their worst and where escape hatches are most needed. This essay is designed to make two contributions. …

Docket Control And The Success Of Constitutional Courts, David Fontana

GW Law Faculty Publications & Other Works

This chapter, an invited contribution to a compendium on comparative constitutional law, argues that giving courts the power of docket control can contribute to their power and success. To make this point, this chapter surveys the experiences of several emerging and established constitutional democracies. Deciding what cases to decide permits a court to issue the right decisions at the right times, what this chapter calls ‘issue timing.’ A court can avoid encountering an issue until the country is ready to discuss the issue, and perhaps ready to resolve the issue in the manner the court is contemplating – or the …

Plus Factors And Agreement In Antitrust Law, William E. Kovacic

GW Law Faculty Publications & Other Works

Despite the crucial role of concerted action to collusion among rival firms, few elements are more perplexing than the design of evidentiary standards to determine whether parallel conduct stems from collective or from unilateral decision making. Courts allow a collusive agreement to be established by circumstantial evidence, but the evidence must show additional evidence — “plus factors” — beyond parallel movement in price. Chief plus factors identified by courts have included actions contrary to each defendant’s self-interest unless pursued as part of a collective plan, phenomena that can be explained rationally only as a result of concerted action, evidence that …

Government Lawyering, Jessica Tillipman, Robert B. Mahini

GW Law Faculty Publications & Other Works

The legal profession is regulated with numerous ethical rules designed to ensure that practitioners comply with its high standards of professional conduct. Federal Government attorneys, while generally held to the same ethical standards as other attorneys, are subject to an additional set of requirements mandated by federal laws and regulations. This article focuses on the rules most crucial to the protection of the public welfare: 1) Government attorneys’ ethical obligations, and 2) Government attorneys’ duty to properly control information.

Government attorneys of the Executive Branch must comply with the “Standards of Ethical Conduct for Employees of the Executive Branch.” This …

Constitutional Law: A Contemporary Approach, Gregory E. Maggs, Peter J. Smith

GW Law Faculty Publications & Other Works

Constitutional Law: A Contemporary Approach (2d ed. 2011) is a textbook written by Professors Gregory E. Maggs and Peter J. Smith (both of the George Washington University Law School) and published by West (ISBN-13: 9780314273550).

The second edition of the textbook, which is suitable either for a one- or two-semester course, strives to make constitutional law easily teachable and readily accessible for students. The authors have selected the cases very carefully and provided fuller versions of the opinions so that students get a good sense of the Court's reasoning. Text boxes call the students' attention to important aspects of each …