Law Commons^™

The International Right To Health: What Does It Mean In Legal Practice And How Can It Affect Priority Setting For Universal Health Coverage?, Rebecca Dittrich, Leonardo Cubillos, Lawrence O. Gostin, Ryan Li, Kalipso Chalkidou

Georgetown Law Faculty Publications and Other Works

The international right to health is enshrined in national and international law. In a growing number of cases, individuals denied access to high-cost medicines and technologies under universal coverage systems have turned to the courts to challenge the denial of access as against their right to health. In some instances, patients seek access to medicines, services, or technologies that they would have access to under universal coverage if not for government, health system, or service delivery shortfalls. In others, patients seek access to medicines, services, or technologies that have not been included or that have been explicitly denied for coverage …

The Original Fourth Amendment, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The meaning of the rights enshrined in the Constitution provide a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. At the time of the Founding, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business, against the owner’s wishes, to search for or to seize persons, papers, and effects, absent a specific warrant. The only exception was when law enforcement or citizens were in active pursuit of a felon.12 Outside of that narrow circumstance, the government was prohibited from search and seizure absent …

Foreword: Why Popular Sovereignty Requires The Due Process Of Law To Challenge "Irrational Or Arbitrary" Statutes, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

So-called “substantive due process” has long been criticized progressives and conservatives as a contradictory interpretation of the Due Process Clauses, and one that undermines the popular sovereignty of We the People to govern themselves. In this Foreword, I explain why an individual conception of We the People, leads to a “republican” conception of popular sovereignty that requires a neutral magistrate to adjudicate whether a statute restricting the liberties of the We the People is within the just powers of a legislature to enact. Because a measure that is ultra vires is not truly “a law,” enforcing it against a fellow …

Immigration, Criminalization, And Disobedience, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This symposium essay explores two contending visions of immigration justice: one focused on expanding procedural rights for immigrants, and a second associated with a movement of immigrant youth who have come out en masse as “undocumented and unafraid,” issuing a fundamental challenge to immigration restrictionism. As immigration enforcement in the United States increasingly relies on criminal prosecution and detention, advocates for reform have increasingly turned to constitutional criminal procedure, seeking greater procedural protections for immigrants. But this essay argues that this focus on enhanced procedural protections is woefully incomplete as a vision of immigration justice. Although a right to counsel, …

Climate Exactions, J. Peter Byrne, Kathryn A. Zyla

Georgetown Law Faculty Publications and Other Works

This essay presents a legal device by which local governments can put a price on climate emissions and loss of resiliency generated by new real estate development. Local governments commonly impose fees, a type of monetary exaction, on new development to offset public costs that such development will impose. This Essay argues that monetary fees offer significant potential as a tool to help local governments manage land development’s contribution to climate change. Such “climate exactions” can put a price on the carbon emissions from new development and also on development that reduces the natural resiliency of the jurisdiction to the …

Class Warfare: The Disappearance Of Low-Income Litigants From The Civil Docket, Myriam Gilles

Articles

In recent years, much attention has been paid to the startling disparities in income and wealth in contemporary U.S. society. The enormous concentration of economic power in the top 1% is the culmination of decades of significant income and wealth gains for the top, combined with stagnant or decreasing growth for the majority - a trend that continues apace. But nowhere is the gap more glaring than in the civil docket, where class actions brought by or on behalf of low-income consumers and employees are on the verge of disappearing.

To be sure, the decline in class actions is only …

Out-Beale-Ing Beale, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”], EEOC v. Arabian American Oil Co. (Aramco), Larry Kramer described the presumption as an anachronism—a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then. The title of his scathing article, Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement of Conflict of Laws, whose since-discredited theories underlay that Restatement’s approach to choice of law. In the cases since Aramco …

Collaborative Academic Library Digital Collections Post- Cambridge University Press, Hathitrust And Google Decisions On Fair Use, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Academic libraries face numerous stressors as they seek to meet the needs of their users through technological advances while adhering to copyright laws. This paper seeks to explore one specific proposal to balance these interests, the impact of recent decisions on its viability, and the copyright challenges that remain after these decisions.

'Big Food' Is Making America Sick, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

“Big Food”—agribusiness, manufacturers, restaurants, and marketers—is making America sick. The industry produces and aggressively markets foods laden with sugar, salt, saturated fat, and calories. It obfuscates nutritional information to confuse consumers, targeting young people and minorities in particular. It purchases influence at every level of government and fights commonsense regulations by funding “shadow” advocacy groups and sympathetic scientists. Big Food is relentless in litigating against any law that is likely to be effective in curbing unhealthy eating.

Pay It Forward? Law And The Problem Of Restricted-Spending Philanthropy, Brian Galle

Georgetown Law Faculty Publications and Other Works

American foundations and other philanthropic giving entities hold about $1 trillion in investment assets, and that figure continues to grow every year. Even as urgent contemporary needs go unmet, philanthropic organizations spend only a tiny fraction of their wealth each year, mostly due to restrictive terms in contracts between donors and firms limiting the rate at which donations can be distributed. Law has played a critical role in underwriting and encouraging this build-up of philanthropic wealth. For instance, contributors can typically take a full tax deduction for the value of their contribution today, no matter when the foundation spends their …

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Articles

All creativity and innovation build on existing ideas. Authors and inventors copy, adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports four novel creativity experiments that begin to test those assumptions. In particular, …

Confronting The Carceral State, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Alternative Litigation Finance And The Limits Of The Work-Product Doctrine, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

As third-party funding of litigation begins to take hold in the United States, debates about the normative value of such arrangements have heated up among scholars, practitioners, and policymakers. Meanwhile, such arrangements are up and running-providing capital for parties in various cases. As a result, while higher-level debates remain ongoing, courts have had to grapple with on-the-ground issues at the intersection of such funding arrangements and the operation of the Federal Rules of Civil Procedure. In particular, as this essay addresses, courts have begun to deal with the question of whether and to what extent materials created in the course …

A Brook With Legal Rights: The Rights Of Nature In Court, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see …

The Contested Value Of Normative Legal Scholarship, Robin West

Georgetown Law Faculty Publications and Other Works

Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may be scholarship, but it’s not legal because it’s not normative enough.

In this article, I address one side of this issue, what I call the anti-normativity complaint: to wit, that legal scholarship is somehow not “true scholarship” because so much of it is overtly normative. Legal scholarship, according to this strand of criticism, isn’t true scholarship because of the dominance of “ought” …

Law's Emotions, Robin West

Georgetown Law Faculty Publications and Other Works

The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the …

"Loser Pays" In Patent Examination, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Many scholars and practitioners believe there are too many “weak” patents—those that should not have issued but somehow get approved by the U.S. Patent and Trademark Office (PTO). To the extent they exist, such patents unnecessarily tax real innovation and generate welfare losses for society.

Some commentators have focused on the PTO’s failure to exclude weak patents, or the damage caused by these patents in litigation, often by patent trolls. But this scholarly discussion misses the point. The present Article argues that weak patents largely stem from a pricing problem: namely, a patent applicant pays higher patent fees when she …

The First Amendment Walks Into A Bar: Trademark Registration And Free Speech, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Section 2 of the Lanham Act, the federal law governing trademarks, lists a number of bars that preclude registration of a trademark on the federal register. These reasons include: the claimed matter is functional, meaning it affects the cost or quality of the underlying product or service; the claimed matter is merely descriptive, meaning that consumers don’t understand that it indicates source and instead think that it just describes some characteristic of the product; the claimed matter is deceptively misdescriptive, which is like descriptiveness except not true; the claimed matter is deceptive, meaning that the untruth would be material to …

Imagining Global Health With Justice, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article offers a way to achieve global health with justice as a global health imperative. It is possible to have global health without justice, meaning that improvements in health outcomes could be achieved, but without a fair distribution of the benefits of good health. It is also possible to have justice without global health, where health outcomes are evenly distributed across the population but overall health is not improved. With this understanding, this article challenges current ways of understanding global health, and argues that absolute reductions in morbidity and premature mortality are not robust indicators of success in the …

Retirement In The Land Of Lincoln: The Illinois Secure Choice Savings Program Act, Edward A. Zelinsky

Articles

In 2015, Illinois became the first state to enact a state-mandated and state-operated retirement system for private sector employers: The Illinois Secure Choice Savings Program Act. The Illinois program resembles a system approved by the California legislature—a system that has not yet been enacted since it is conditioned on an additional vote by the legislature. Illinois’ program and the one proposed in California have notable differences in that (1) the Illinois retirement accounts will qualify as individual retirement accounts (“IRAs”) under the Internal Revenue Code (“Code”); (2) the Illinois IRAs will be Roth IRAs; (3) the California program requires participation …

The Day Doctrine Died: Private Arbitration And The End Of Law, Myriam E. Gilles

Articles

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders.

Meanwhile, and also in the early 1980s, federal courts began …

The Biodiversity Paradigm Shift: Adapting The Endangered Species Act To Climate Change, Kalyani Robbins

Faculty Publications

The Endangered Species Act (ESA) was designed to protect species that had been rendered more vulnerable to extinction as a result of human activity. As such, its implementation has traditionally focused on keeping human beings away from such species and giving the species (and their ecosystems) space to heal on their own. Climate change is altering the landscape everywhere on the globe, rendering the hands-off approach no longer sufficient. Active interventions will become more necessary as we get further into the changing climate. Taking decisive action in response to climate change will also require a fundamental shift in our approach …

Flagrant Police Abuse: Why Black Lives (Also) Matter To The Fourth Amendment, Joelle A. Moreno

Faculty Publications

No abstract provided.

V.17-2, 2016 Masthead

San Diego International Law Journal

No abstract provided.

The Third Player-Illegal Combatant, Emanual Gross

San Diego International Law Journal

This Article will examine the current status of the international law of war with respect to terrorist organizations and their operatives. The central argument of this article is that international humanitarian law is unable to cope with the reality of international terrorism. The basic definitions of "combatant" and "civilian" are not suitable within the context of the age of terrorism. In the past, combatants were presumed to be either a member of a state, or in the alternative, freedom fighters expressing an idea of resistance against a colonial occupation. Terrorist organizations and their members are not freedom fighters, but rather, …

Endemic Corruption In The People's Republic Of China, Emily Tran

San Diego International Law Journal

Since taking office in 2013, President Xi Jinping has emphasized the importance of enforcing his campaign against corruption. The number of bribery convictions issued in recent years and the possibility of receiving the death penalty for serious corruption-related crimes underscores the seriousness with which the CPC considers corruption. The penalties for bribery are harsh compared to most other countries and serve as a strong method of deterrence. Part II of this Article discusses the PRC's anti-corruption laws in the individual and commercial contexts and note the inherent problems in the CPC's enforcement efforts. Part III will discuss the impact of …

V. 18-1, 2016 Masthead

San Diego International Law Journal

No abstract provided.

Extraterrestrial Property Rights: Utilizing The Resources Of The Final Frontier, John Myers

San Diego International Law Journal

In sum, space exploration offers three important opportunities for the United States. First, space exploration promotes scientific progress and international cooperation. Second, space exploration will drive the world economy by creating new jobs and introducing exploited space resources into the markets. Third, space exploration will reverse the decline of the United States in math and science by inspiring children to be interested in STEM fields. More than fifty years later, President Kennedy words still ring true: ;[N]o nation which expects to be the leader of other nations can expect to stay behind in the race for space

Gone But Not Forgotten: Recognizing The Right To Be Forgotten In The U.S. To Lessen The Impacts Of Data Breaches, Ashley Stenning

San Diego International Law Journal

This Comment will explore the right to be forgotten, how it is recognized in the European Union, and the trend toward the existence of such a right in the United States. Additionally, this comment will discuss how the right to be forgotten could lessen the impact data breaches have on individuals through the lens of the Ashley Madison hack. Lastly, this comment will discuss how, if the United States narrowed the scope of the European Union’s concept of the right to be forgotten to fit into the United States’ view of privacy and the First Amendment, the impact of data …

Bitter Biopharmaceuticals: Biologic Counterfeiting And Supply Chain Concerns, Jennifer Abma

San Diego International Law Journal

Pharmaceutical counterfeiting is a growing area of public safety and national security concern. Biological medications are a growing portion of counterfeit medicines due to the high cost and opportunities for profit from these innovative drugs. Biologics are a unique target for counterfeiters in international commerce presentingunique hazards over traditional, more stable, pills. This Article explores the international biopharmaceutical supply chain and the regulatory weaknesses that compromise public health.