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2012

Georgetown University Law Center

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Full-Text Articles in Law

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores Dec 2012

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores

Georgetown Law Faculty Publications and Other Works

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by …


Do Damages Caps Reduce Medical Malpractice Insurance Premiums?: A Systematic Review Of Estimates And The Methods Used To Produce Them, Kathryn Zeiler, Lorian E. Hardcastle Nov 2012

Do Damages Caps Reduce Medical Malpractice Insurance Premiums?: A Systematic Review Of Estimates And The Methods Used To Produce Them, Kathryn Zeiler, Lorian E. Hardcastle

Georgetown Law Faculty Publications and Other Works

Despite common claims made in policy debates, the theoretical connection between tort reform and medical malpractice insurance premiums is ambiguous. Simple models suggest reforms such as statutory damages caps reduce premiums. More elaborate models that account for changes in physician behavior suggest caps might increase or have no impact on premiums. A number of empirical studies have been conducted to estimate the impacts of caps on premiums, and several qualitative literature reviews have attempted to draw general conclusions from the literature. No review, however, has offered a comprehensive and systematic analysis of the full set of empirical studies. This chapter …


The Legal Significance Of The Psychological Ability To Appreciate The “Other”, Paul F. Rothstein Nov 2012

The Legal Significance Of The Psychological Ability To Appreciate The “Other”, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Recently the U.S. Supreme Court, citing neurological and psychological studies, held that because juveniles are deficient in appreciating consequences to others, they should never be given the death penalty. The author found, in his years as a legal scholar, educator, and practitioner, that “appreciating the ‘other’”--putting oneself in the position of others---is critical to law and the study of law in more than the obvious ways.

The author became aware of empirical studies and psychological experiments demonstrating that children below a certain age have trouble seeing things from another’s vantage point, and found that the facility to do so develops …


The Power To Block The Affordable Care Act: What Are The Limits?, John D. Kraemer, Lawrence O. Gostin Nov 2012

The Power To Block The Affordable Care Act: What Are The Limits?, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Though Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might …


Emergency Preparedness And Public Health: The Lessons Of Hurricane Sandy, Tia Powell, Dan Hanfling, Lawrence O. Gostin Nov 2012

Emergency Preparedness And Public Health: The Lessons Of Hurricane Sandy, Tia Powell, Dan Hanfling, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

When Hurricane Sandy hit downtown Manhattan, three neighboring hospitals each made different decisions about when to evacuate. Across the metro region, more than five hospitals and over 20 nursing and assisted living facilities were evacuated, making this the central public health challenge of this calamitous event. It is a familiar story—a super storm comes ashore, infrastructure is overwhelmed, and healthcare facilities evacuate patients, with major delays in returning to normal functioning. Afterwards, policy makers evaluate lessons learned for the next disaster, but similar missteps are often repeated.

Although not identical, it is instructive to compare Hurricane Katrina with the still …


The Nature Of Risk Preferences: Evidence From Insurance Choices, Levon Barseghyan, Francesca Molinari, Joshua C. Teitelbaum, Ted O'Donoghue Nov 2012

The Nature Of Risk Preferences: Evidence From Insurance Choices, Levon Barseghyan, Francesca Molinari, Joshua C. Teitelbaum, Ted O'Donoghue

Georgetown Law Faculty Publications and Other Works

The authors use data on insurance deductible choices to estimate a structural model of risky choice that incorporates "standard" risk aversion (diminishing marginal utility for wealth) and probability distortions. They find that probability distortions--characterized by substantial overweighting of small probabilities and only mild insensitivity to probability changes--play an important role in explaining the aversion to risk manifested in deductible choices. This finding is robust to allowing for observed and unobserved heterogeneity in preferences. They demonstrate that neither Kőszegi-Rabin loss aversion alone nor Gul disappointment aversion alone can explain our estimated probability distortions, signifying a key role for probability weighting.


The Borrower's Tale: A History Of Poor Debtors In Lochner Era New York City, Anne Fleming Nov 2012

The Borrower's Tale: A History Of Poor Debtors In Lochner Era New York City, Anne Fleming

Georgetown Law Faculty Publications and Other Works

This study adds to the recent scholarship on Progressivism in practice—fine-grained, place-based studies of reform at the local level—but focuses closely on the relationships among reformers, industry, and the law that an earlier generation of historians studied at the national level and outlined in broad brushstrokes. This study also builds upon the creditor-centered work of historians such as Mark H. Haller and John V. Alviti, but moves beyond their reliance upon distinctions and categories, such as those separating profit making credit providers from philanthropic credit providers, which were less important to borrowers than they have been for historians. In focusing …


Reducing Unlawful Prescription Drug Promotion: Is The Public Health Being Served By An Enforcement Approach That Focuses On Punishment?, Vicki W. Girard Oct 2012

Reducing Unlawful Prescription Drug Promotion: Is The Public Health Being Served By An Enforcement Approach That Focuses On Punishment?, Vicki W. Girard

Georgetown Law Faculty Publications and Other Works

Despite the imposition of increasingly substantial fines and recently successful efforts to impose individual liability on corporate executives under the Park doctrine, punishing pharmaceutical companies and their executives for unlawful promotional activities has not been as successful in achieving compliance with the Federal Food, Drug, and Cosmetic Act (FD&C Act) as the protection of the public health demands. Over the past decade, the Food and Drug Administration (FDA) and the Department of Justice (DOJ) have shifted their focus from correction and compliance to a more punitive model when it comes to allegedly unlawful promotion of pharmaceuticals. The shift initially focused …


Interpretation And Construction In Altering Rules, Gregory Klass Oct 2012

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …


What’S Right About The Medical Model In Human Subjects Research Regulation, Heidi Li Feldman Oct 2012

What’S Right About The Medical Model In Human Subjects Research Regulation, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Critics of Institutional Review Board (IRB) practices often base their charges on the claim that IRB review began with and is premised upon a "medical model" of research, and hence a "medical model" of risk. Based on this claim, they charge that IRB review, especially in the social and behavioral sciences, has experienced "mission creep". This paper argues that this line of critique is fundamentally misguided. While it remains unclear what critics mean by "medical model", the point of contemporary human research subjects regulation remains the same across all domains of research. That point is to protect the autonomy of …


Defending Those People, Abbe Smith Oct 2012

Defending Those People, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Many practitioners and scholars have written perceptively about the motivations of criminal defenders. Some have written eloquently. I have my own body of work on this and related questions.

This essay is about why the author has devoted her professional career--her life--to defending people most of society would just as soon banish and forget. After nearly thirty years of criminal law practice, her reasons are such a part of her that they are nearly inarticulable. The author is a criminal defender in her soul. She also has been teaching and writing about criminal defense for almost as long as she …


Foreword: Academic Influence On The Court, Neal K. Katyal Oct 2012

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …


Developing A Teacher Training Program For New Clinical Teachers, Wallace J. Mlyniec Oct 2012

Developing A Teacher Training Program For New Clinical Teachers, Wallace J. Mlyniec

Georgetown Law Faculty Publications and Other Works

Where to Begin? Training New Teachers in the Art of Clinical Pedagogy, an article published in the Spring, 2012, issue of the Clinical Law Review, gave a full description of Georgetown’s course in clinical pedagogy. That article set forth some of the critical questions new teachers must ask and answer by describing the goals, content, and execution of the course.

This article describes hows, whens, and whys of the program, focusing on how our faculty, over a period of many years, created and revised the curriculum for the Pedagogy course. It also describes the choices we made as we …


Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow Sep 2012

Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …


Anonymous Withholding Agreements And The Future Of International Cooperation In Taxing Foreign Financial Accounts : Testimony Before The Finance Committee Of The German Bundestag, September 24, 2012 (Statement By Associate Professor Itai Grinberg, Geo. U. L. Center), Itai Grinberg Sep 2012

Anonymous Withholding Agreements And The Future Of International Cooperation In Taxing Foreign Financial Accounts : Testimony Before The Finance Committee Of The German Bundestag, September 24, 2012 (Statement By Associate Professor Itai Grinberg, Geo. U. L. Center), Itai Grinberg

Georgetown Law Faculty Publications and Other Works

Chairwoman Reinemund and members of the Finance Committee, this testimony will make three key points:

• Automatic information exchange is superior to anonymous withholding for the purpose of combating tax evasion involving the use of foreign financial accounts.

• German ratification of the Swiss-German anonymous tax withholding agreement would stifle the emergence of a multilateral automatic information exchange system. As a result, Germany would be less able to address its own concerns with tax evasion through foreign accounts over the medium term. By ratifying this agreement, Germany would also slow the development of a multilateral system that would allow many …


Reflections On Kony 2012, Rosa Brooks Sep 2012

Reflections On Kony 2012, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

In spring 1997, few people outside Uganda had heard of the Lord’s Resistance Army (LRA). The LRA arose in the late 1980s out of the ashes of Alice Lakwena’s Holy Spirit Movement, and over the next decade, LRA raids killed thousands of villagers in Northern Uganda. Hundreds of thousands were displaced, and an estimated 10,000 children were forcibly abducted by the LRA and brutally coerced into becoming killers, sex slaves or both. But in the spring of 1997, the LRA had yet to make CNN.


A Natural Experiment: Asset Manager Liability, Cally Jordan Aug 2012

A Natural Experiment: Asset Manager Liability, Cally Jordan

Faculty Papers & Publications

It is a natural experiment: two highly integrated national economies, sharing a vast continent, a common language and hundreds of years of common experience. They are bound by a free trade agreement which has fostered strong trade flows in goods, services and capital. Yet, in important respects, the structural characteristics of their financial institutions, and the regulatory framework in which they operate, are different, so different in fact, that one country has been crippled for several years now by the global financial crisis and the other has emerged virtually unscathed. The countries, of course, are Canada and the United States. …


Check One And The Accountability Is Done: The Harmful Impact Of Straight-Ticket Voting On Judicial Elections, Meryl Chertoff, Dustin F. Robinson Jul 2012

Check One And The Accountability Is Done: The Harmful Impact Of Straight-Ticket Voting On Judicial Elections, Meryl Chertoff, Dustin F. Robinson

Georgetown Law Faculty Publications and Other Works

States that elect judges are heir to a populist tradition dating back to the Jacksonian era. In the spectrum between independence and accountability, these states emphasize accountability. Systems vary from state to state, and even within states there may be geographic diversity or different selection systems for different levels of courts. Elections can be partisan or non-partisan, contested, or, as in merit-selection states, retention. Some states have dabbled in public financing of judicial elections. Reformers are most critical of contested partisan elections. Those are the elections where the most money is spent, the nastiest ads aired, and the dignity of …


Poverty In America: Why Can't We End It?, Peter B. Edelman Jul 2012

Poverty In America: Why Can't We End It?, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

The lowest percentage in poverty since we started counting was 11.1 percent in 1973. The rate climbed as high as 15.2 percent in 1983. In 2000, after a spurt of prosperity, it went back down to 11.3 percent, and yet 15 million more people are poor today.

At the same time, we have done a lot that works. From Social Security to food stamps to the earned-income tax credit and on and on, we have enacted programs that now keep 40 million people out of poverty. Poverty would be nearly double what it is now without these measures, according to …


Ethical Challenges Of Preexposure Prophylaxis For Hiv, Jonathan S. Jay, Lawrence O. Gostin Jul 2012

Ethical Challenges Of Preexposure Prophylaxis For Hiv, Jonathan S. Jay, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

On July 16, 2012, emtricitabine/tenofovir (Truvada) became the first drug approved by the US Food and Drug Administration for preexposure prophylaxis (PrEP) of human immunodeficiency virus (HIV) for adults at high risk. While PrEP appears highly effective with consistent adherence, effective implementation poses ethical challenges for the medical and public health community. For PrEP users, it is necessary to maintain adherence, safe sex practices, and routine HIV testing and medical monitoring, to maximize benefits and reduce risks. On a population level, comparative cost-effectiveness should guide priority-setting, while safety measures must address drug resistance concerns without burdening patients' access. Equitable distribution …


Justice Roberts’ America, Robin West Jul 2012

Justice Roberts’ America, Robin West

Georgetown Law Faculty Publications and Other Works

Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be …


International Financial Standards And The Explanatory Force Of Lex Mercatoria, Cally Jordan Jul 2012

International Financial Standards And The Explanatory Force Of Lex Mercatoria, Cally Jordan

Faculty Papers & Publications

The global financial crisis has cast a strong light on some hitherto obscure corners of the financial world, provoking an outpouring of calls for concerted international action. “Hard law” having disappointed, can “soft law”, in the form of international financial standards, substitute for traditional national legislation. This article examines some of the difficulties associated with the “international standards as soft law” discourse.

First of all, conceptual problems in the “soft law” discourse itself reveal profoundly different patterns of legal thought cutting across national boundaries, resulting in different understandings of international financial standards. Secondly, recent experience, over the past decade, with …


An O’Neill Institute Briefing Paper: The Supreme Court’S Landmark Decision On The Affordable Care Act: Healthcare Reform’S Ultimate Fate Remains Uncertain, Emily W. Parento, Lawrence O. Gostin Jul 2012

An O’Neill Institute Briefing Paper: The Supreme Court’S Landmark Decision On The Affordable Care Act: Healthcare Reform’S Ultimate Fate Remains Uncertain, Emily W. Parento, Lawrence O. Gostin

O'Neill Institute Papers

The Supreme Court’s decision on the constitutionality of the Patient Protection and Affordable Care Act (ACA) is a landmark on the path toward ensuring universal access to health care in the United States. In a 5-4 decision written by Chief Justice Roberts, the Court upheld the law in its entirety with the sole exception that Congress may not revoke existing state Medicaid funding to penalize states that decline to participate in the Medicaid expansion under the ACA. In this O’Neill Institute Briefing, we explain and analyze the Court’s decision, focusing on the individual purchase mandate and the Medicaid expansion, while …


Child Abuse Reporting: Rethinking Child Protection, Susan C. Kim, Lawrence O. Gostin, Thomas B. Cole Jul 2012

Child Abuse Reporting: Rethinking Child Protection, Susan C. Kim, Lawrence O. Gostin, Thomas B. Cole

Georgetown Law Faculty Publications and Other Works

The general public has been bewildered by the magnitude of sex abuse cases and the widespread failure by pillars of the community to notify appropriate authorities. The crime of sexually abusing children is punishable in all jurisdictions and this article examines the duty to report suspected cases by individuals in positions of trust over young people, such as in the church or university sports. The Federal Child Abuse Prevention and Treatment Act (CAPTA) defines child maltreatment as an act or failure to act on the part of a parent or caregiver that results in death, serious physical or emotional harm, …


Confronting The Wizard Of Oz: National Security, Expertise, And Secrecy, David Cole Jul 2012

Confronting The Wizard Of Oz: National Security, Expertise, And Secrecy, David Cole

Georgetown Law Faculty Publications and Other Works

Aziz Rana’s account of the takeover of American national security by experts, and of the public’s acceptance of that state of affairs, offers an important and novel perspective on what ails us in national security today. In this Comment, I suggest that while Rana is correct to identify our deference to experts as a central aspect of the problem, the problem is more complicated. First, the phenomenon of elite control over foreign and security policy questions is not new, but likely dates back to the founding—when elites ruled not based on expertise but on the basis of status, class, and …


Promise Etc., Gregory Klass Jul 2012

Promise Etc., Gregory Klass

Georgetown Law Faculty Publications and Other Works

This Article examines the moral obligations contractual agreements generate. It distinguishes a narrow sense of "promise," central to autonomy theories, according to which to promise is to communicate an intention to undertake an obligation by the very communication of that intention. Not every agreement involves promises in this sense. Yet nonpromissory agreements too commonly generate moral obligations. And even when a party promises to perform, her promise need not be the only reason for her moral obligation to do so. Other possible reasons include reliance, an invitation to trust, implicit or explicit, principles of reciprocity, and the harm that nonperformance …


Pillars For Progress On The Right To Health: Harnessing The Potential Of Human Rights Through A Framework Convention On Global Health, Eric A. Friedman, Lawrence O. Gostin Jun 2012

Pillars For Progress On The Right To Health: Harnessing The Potential Of Human Rights Through A Framework Convention On Global Health, Eric A. Friedman, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Ever more constitutions incorporate the right to health, courts continue to expand their right to health jurisprudence, and communities and civil society increasingly turn to the right to health in their advocacy. Yet the right remains far from being realized. Even with steady progress on numerous fronts of global health, vast inequities at the global and national levels persist, and are responsible for millions of deaths annually. We propose a four-part approach to accelerating progress towards fulfilling the right to health: 1) national legal and policy reform, incorporating right to health obligations and principles including equity, participation, and accountability in …


Bridging International Law And Rights-Based Litigation: Mapping Health-Related Rights Through The Development Of The Global Health And Human Rights Database, Benjamin Mason Meier, Oscar A. Cabrera, Ana Ayala, Lawrence O. Gostin Jun 2012

Bridging International Law And Rights-Based Litigation: Mapping Health-Related Rights Through The Development Of The Global Health And Human Rights Database, Benjamin Mason Meier, Oscar A. Cabrera, Ana Ayala, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The O'Neill Institute for National and Global Health Law at Georgetown University, the World Health Organization, and the Lawyers Collective have come together to develop a searchable Global Health and Human Rights Database that maps the intersection of health and human rights in judgments, international and regional instruments, and national constitutions. Where states long remained unaccountable for violations of health-related human rights, litigation has arisen as a central mechanism in an expanding movement to create rights-based accountability. Facilitated by the incorporation of international human rights standards in national law, this judicial enforcement has supported the implementation of rights-based claims, giving …


Global Health Justice: A Perspective From The Global South On A Framework Convention On Global Health, Lawrence O. Gostin, Ames Dhai Jun 2012

Global Health Justice: A Perspective From The Global South On A Framework Convention On Global Health, Lawrence O. Gostin, Ames Dhai

Georgetown Law Faculty Publications and Other Works

A global coalition of civil society and academics recently launched the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI), which is developing a post-Millennium Development Goal (MDG) framework for global health. JALI’s mission is the achievement of a global health treaty based on the right to health—a Framework Convention on Global Health (FCGH). The FCGH proposes establishing fair terms of international co-operation, with agreed-upon mutually binding obligations to create enduring health system capacities, meet basic survival needs, and reduce unconscionable inequalities in global health. States that bear a disproportionate burden of disease have the least …


A Framework Convention On Global Health: Health For All, Justice For All, Lawrence O. Gostin May 2012

A Framework Convention On Global Health: Health For All, Justice For All, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Health inequalities represent perhaps the most consequential global health challenge and yet they persist despite increased funding and innovative programs. The United Nations is revising the Millennium Development Goals (MDGs) that will shape the world for many years to come. What would a transformative post-MDG framework for global health justice look like? A global coalition of civil society and academics—the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI)—has formed an international campaign to advocate for a Framework Convention on Global Health (FCGH). Recently endorsed by the UN Secretary-General, the FCGH would reimagine global governance for …