Law Commons^™

Revisiting Controlled Digital Lending Post-Redigi, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Now that the Second Circuit has ruled on the ReDigi appeal, some libraries and users may be curious to see how the decision factors into controlled digital lending (CDL) efforts. To understand the interest and the implications, we first need to establish the basic contours of copyright, fair use, CDL, and ReDigi.

The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points.

Health Care Costs And The Arc Of Innovation, Neel U. Sukhatme, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We point instead to the nexus of economics, mutual empathy, and social expectations that drives medical innovation and locks in low-value technologies. We show how law reflects and reinforces this nexus and how and why health-policy-makers avert their gaze.

Next, we propose to circumvent these barriers instead of surmounting them. Rather than targeting today’s excessive spending, …

All Balls And No Strikes: The Roberts Court’S Anti-Worker Activism, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights.

In 2012, I traced how the Roberts Court paid scant attention to the integral role …

How U.S. Family Law Might Deal With Spousal Relationships Of Three (Or More) People, Edward D. Stein

Articles

For much of this nation's history, the vast majority of people have believed that being married to more than one person at the same time is deeply problematic. Further, polygamous marriage has never been legal in the United States. Despite this, some people have been in plural or group relationships and some of these people have wished to gain legal recognition for these relationships. The arguments for recognizing such relationships are persuasive, but the prospects for legalization of polygamous marriage seem slim in the near future. This Article offers a suggestion of how the law of domestic relations might deal …

The Genie Is Out Of The De-Extinction Bottle: A Problem In Risk Regulation And Regulatory Gaps, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Once the province of horror films and fantasy, the idea of recreating extinct life forms is poised to move from science fiction to laboratories and from there to the world at large. While “de-extinction is not something that will take place tomorrow . . . scientists are making major advancements, and eventual success appears inevitable.” Spurred on by the burgeoning field of genetic engineering, it was only a matter of time before scientists turned their attention to recreating extinct life forms, either for the thrill of it or in atonement for the human role in the extinction process.

But science …

Discounting Women: Doubting Domestic Violence Survivors’ Credibility And Dismissing Their Experiences, Deborah Epstein, Lisa A. Goodman

Georgetown Law Faculty Publications and Other Works

In recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight-style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories …

Foreword (From The Volume Editor), Mariusz Szyrski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

from the Volume Editor

Entire Issue Vol. 8 No. 2

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Vol. 8(2)

Marzena Czarnecka – Recipient Of The Cars Regulatory Award 2019, Tadeusz Skoczny

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

CARS Regulatory Award 2019

About Consumer Protection On The Market A Few Words (From The Volume Editors), Edyta Rutkowska-Tomaszewska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

From the volume editors

Entire Issue Vol. 8 No. 8

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Vol. 8(8)

A Few Grains Of Incense: Law, Religion, And Politics From The Perspective Of The "Christian" And "Pagan" Dispensations, Paul Horwitz

Articles

No abstract provided.

Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman

Articles

No abstract provided.

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, Benjamin Mcmichael, R. Lawrence Van Horn, W. Kip Viscusi

Articles

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, thirty-nine states (and the District of Columbia) have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible as evidence in subsequent malpractice trials.

The underlying assumption of these laws is that after receiving an apology, patients will be less likely to pursue malpractice claims and will be more likely to settle claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, …

A Rule 11 For Prosecutors, Yuri R. Linetsky

Articles

This Article suggests a novel approach to allow victims of frivolous prosecutions to hold prosecutors accountable. Unique among American lawyers, prosecutors enjoy absolute immunity from civil suits alleging professional misconduct. In cases of frivolous prosecutions, where charges are dismissed by the judge or the defendants are acquitted, the former defendants are prevented from seeking damages. This is so despite former defendants often suffering significant consequences-from legal fees to loss of employment. Victims of frivolous prosecutions should be afforded a mechanism to seek redress against prosecutors who bring or maintain meritless actions.

By enacting a rule of criminal procedure that mirrors …

Rodrigo And Ressentiment "I Don't Want It If You Are Going To Get It, Too" -- Why Classical Economic And Political Theory Fails To Explain The Obamacare Vote, But Legal Realism And Cls Can, Richard Delgado

Articles

No abstract provided.

Full Transparency: A Case Against The Collection Of Internet Information In Trump-Era American Immigration, Thomas P. Campbell

FIU Law Review

No abstract provided.

From Venetian Glass To Contemporary Intellectual Property: Revisiting Tailored Patent Regimes (Book Review), Ana Santos Rutschman

All Faculty Scholarship

This piece reviews Stefania Fusco's “Murano Glass Vase" and "Lessons from the Past." In Murano Glass Vase, Fusco recounts the history of the glassmaking industry in Venice, framing it as the natural experiment from which the patent system sprang into the world. Fusco emphasizes the mix of exclusionary rights and trade secrecy that formed the backbone of Venetian innovation policy against the backdrop of a heavily regulated and protectionist economy. In “Lessons from the Past,” Fusco draws on original research performed at the Venetian State Archives to further the Murano narrative by looking at how the Venetian government fueled an …

Digital Asset Planning For Minors, Natalie Banta, Naomi R. Cahn

GW Law Faculty Publications & Other Works

No abstract provided.

Modern Military Justice: Cases And Materials, Lisa M. Schenck

GW Law Faculty Publications & Other Works

This textbook is about the modern military justice system of the United States. It covers court-martial procedures, substantive criminal law, and nonjudicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives federal courts jurisdiction over certain acts committed abroad. The Third Edition includes several recent cases and updates that address the significant changes made in the 2019 Manual for Courts-Martial, the Military Justice Act of 2016, and other recent legislation.

The Scope Of The Removal Power Is Ripe For Reconsideration, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This article was requested by The Judges Journal for inclusion in a symposium devoted to the status of administrative law judges. Professor Pierce argues that the scope of the removal power is ripe for review; the Supreme Court should hold that the president must have the power to remove all officers with executive responsibilities at will to allow the president to perform the functions vested in the president by Article II; and the Court should hold that due process requires that officers with purely adjudicative functions must be insulated from potential control by the president by forbidding their removal without …

Contractual Tax Reform, Michael B. Abramowicz, Andrew `Blair-Stanek

GW Law Faculty Publications & Other Works

One-size-fits-all taxation fails to accommodate diverse taxpayer circumstances. This Article proposes allowing taxpayers to contract into alternative tax regimes administered by private intermediaries. Participating taxpayers would make payments to the intermediaries pursuant to contract, and the intermediaries would be required to pay to the government at least as much as these taxpayers would have paid the government otherwise. That amount is determined based on the actual tax receipts of a control group, taxpayers who wish to contract with an intermediary but instead are chosen at random to continue under the status quo. These alternative tax regimes might better accommodate taxpayers’ …

Tax Experimentation, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Random experiments could allow the government to test tax policies before enactment into general law. Such experiments can be revenue-neutral, with the tax authority ensuring ex post that average tax revenues received from taxpayers in the treatment and control groups are equal. Taxpayers might thus volunteer even for experiments that would broaden the tax base, for example by eliminating deductions. Continued participation by taxpayers in such experiments would indicate that the proposed reforms are efficient at least if externalities are disregarded. Non-revenue-neutral experiments raise greater concerns about horizontal inequity, but may be helpful in addressing questions about effects of tax …

Blockchain-Based Insurance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

To date, the insurance industry's interest in the blockchain has focused largely on the possibility of recording insurance entitlements in a transparent way. While the blockchain may produce significant efficiencies of this sort, it has considerably greater transformative potential. Smart contracts could serve as a substitute for insurance companies, conventionally conceived. Such contracts could perform the function of deciding whether claims should paid, without the need for or possibility of judicial intervention. The blockchain and smart contracts are difficult to regulate, because ownership and decisionmaking can be decentralized. Blockchain-based insurance may successfully provide a means of avoiding expensive regulation and …

Prize And Reward Alternatives To Intellectual Property, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This chapter surveys the literature on alternatives to intellectual property, focusing especially on alternatives to patent law, but with some attention as well to copyright. It does not consider the question whether intellectual property rights are justified, but assumes that absent some form of governmental innovation, inventions and works of authorship might be underproduced relative to the social optimum. The chapter thus considers how institutions besides traditional property rights compare relative to one another and to traditional intellectual property systems. The chapter considers only briefly the possibility that government itself might produce inventions and works of authorship or that government …

The Very Brief History Of Decentralized Blockchain Governance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

An emergent form of blockchain governance involves the use of formal games that give participants incentives to identify focal resolutions to normative questions. This symposium contribution provides a brief survey of the literature proposing and critiquing the use of such mechanisms, and it evaluates early laboratory and real-world experiments with this approach to decentralized decisionmaking.

Dismantling The Trusts And Estates Canon, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article steps back and reflects on how new perspectives from gender, race, class, and sexual orientation have challenged existing trusts and estates canonical narratives on a number of different levels, both in terms of deepening trusts and estates but also expanding it—that is, challenging core concepts of the field. Part I celebrates how new perspectives have challenged the core trusts and estates canonical narratives. These new perspectives challenge basic concepts of wealth and do the following: 1) bring in alternative conceptions of wealth and of inheritance; 2) question the biases of inheritance law as they reflect conventional social norms; …

Originalism And Structural Argument, Thomas Colby

GW Law Faculty Publications & Other Works

The "new originalism" is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and …

Can Global Legal Pluralism Be Both "Global" And "Pluralist"?, Paul Schiff Berman

GW Law Faculty Publications & Other Works

The scholarly project of global legal pluralism seems to contain a conundrum at its core. How can any theory of law be focused on pluralism and multiplicity and at the same time claim to be a “global” theory? This conundrum helps explain the criticism global legal pluralism receives from committed pluralists on the one hand and from committed international law triumphalists on the other. The pluralists argue that the normative side of global legal pluralism, by emphasizing procedures and institutions that foster dialogue and interaction, is essentially recapitulating

a universalist liberal legality and therefore is not fundamentally pluralist at all. …