Showing papers by "Georgetown University Law Center published in 1999"

The law and the public's health: a study of infectious disease law in the United States.

Abstract: Law plays crucial roles in the field of public health, from defining the power and jurisdiction of health agencies, to influencing the social norms that shape individual behavior. Despite its importance, public health law has been neglected. Over a decade ago, the Institute of Medicine issued a report lamenting the state of public health administration, generally, and calling, in particular, for a revision of public health statutes. The Article examines the current state of public health law. To help create the conditions in which people can be healthy, public health law must reflect an understanding of how public health agencies work to promote health, as well as the political and social contexts in which these agencies operate. The authors first discuss three prevailing ways in which the determinants of health are conceptualized, and the political and social problems each model tends to create for public health efforts. The analysis then turns to the core functions of public health, emphasizing how law furthers public health work. The Article reports the results of a fifty-state survey of communicable disease control law, revealing that few states have systematically reformed their laws to reflect contemporary medical and legal developments. The Article concludes with specific guidelines for law reform.

Self-Regulation and the Media

Abstract: Self-regulation has been portrayed as superior to government regulation for addressing problems of new media such as digital television and the internet. This article reviews the literature on self-regulation to define what is meant by the term, to identify the purported advantages and disadvantages of self regulation and to identify the conditions needed for its success. It then analyzes the effectiveness of self-regulation by looking at the track record of self-regulation in other media. After describing and analyzing past uses of self-regulation in broadcasting, children's advertising, news, alcohol advertising, comics books movies, and video games, it concludes that self regulation rarely lives up to the claims made for it, although in some cases, it has been useful as a supplement to government regulation. It identifies five factors that may account for the success or failure of self-regulation. These include the industry incentives, the ability of government to regulate, the use of measurable standards, public participation and industry structure. Applying these five factors to digital television public interest responsibilities and privacy on the internet, it concludes that self regulation is not likely to be successful in these contexts.

Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System

Abstract: Despite over two decades of reform, fundamental failures persist in the justice system's response to domestic violence. Society now widely accepts elimination of intrafamily abuse as a crucial goal, and it has been illegal in most states since the late nineteenth century. But the problem remains one of epidemic proportions. As documented in Part I of this Article, battering by husbands, ex-husbands, or lovers is the single largest cause of injury to women in the United States, and accounts for approximately thirty percent of all murders of women. Physical aggression occurs in at least one out of four marriages, and comparable rates exist among couples who are living together, engaged, or dating. Domestic violence is also a major contributing factor to other social ills such as child abuse and neglect, female alcoholism, drug abuse, mental illness, attempted suicide, and homelessness.

Disability discrimination in America: HIV/AIDS and other health conditions.

Abstract: The Americans With Disabilities Act (ADA) was widely hailed at the time of its enactment in 1990 as providing broad protection against disability discrimination, including discrimination against individuals infected with the human immunodeficiency virus (HIV). In the years since its enactment, however, courts frequently interpreted the ADA as providing far less protection than was initially anticipated. The Supreme Court's first case involving HIV and the acquired immunodeficiency syndrome, Bragdon v Abbott, addressed this trend by ruling that a woman with asymptomatic HIV infection is protected from discrimination in accessing dental services. In doing so, the Court endorsed an interpretation of the ADA that is broadly protective for individuals with disabilities. The Court also ruled that health care professionals may legally refuse to treat a patient because of concern that the patient poses a direct threat to safety only if there is an objective, scientific basis for concluding that the threat to safety is significant. In addition to the ADA, state laws frequently prohibit disability discrimination and apply to some employers and others not regulated by federal law. A state-by-state survey of those laws demonstrates that, consistent with Bragdon v Abbott, individuals with asymptomatic HIV have widespread protection on the state level.

An Originalism for Nonoriginalists

Abstract: In this paper, I claim that, far from being defeated in the 80's, originalism is the prevailing method of constitutional interpretation (Part I), but it is an originalism based on an objective original meaning rather than on a subjective original intent (Part II). The imperative for this form of originalism lies, not in consent or popular sovereignty, but in a two step analysis (Part III): First, a commitment to "writtenness" akin to that of written contracts begets a commitment to originalism. Second, we are bound to respect the original meaning of a constitution if the written text, properly interpreted, provides for a law making process which can claim constitutional legitimacy. Legitimacy, by my account, is the ability of lawmaking processes to provide an assurance that constitutionally valid statutes are also binding in conscience. I then explain (Part IV) how this form of originalism, justified in this way, responds to the criticisms that had, until now, persuaded me that I was not an originalist.

Do the "Haves" Come out Ahead in Alternative Judicial Systems?: Repeat Players in ADR

Abstract: This article revisits Marc Galanter's important thesis expounded twenty five years ago, that the "haves", or better resourced litigants, and repeat players in the system have structural advantages over "one-shotters" and less resourced litigants. This article reviews the applicability of that thesis to recent developments in ADR, especially in the context of contractual arbitration. The article reviews recent cases and developments in employment arbitration, health, education, securities and consumer disputes in which contractual arbitration is mandated by "repeat player" and institutionally strong disputants. The existing empirical research is reviewed to suggest that, as in litigation, the "haves" often "come out ahead" in ADR, too. This has implications for when and how third party neutrals, as well as litigants, are repeat players in these processes and why and how particular parties try to control the kinds of processes that are used to resolve certain kinds of disputes. If ADR is no more effective at justice "redistribution" than litigation, we must examine other justifications for ADR. Mediation may operate differently than arbitration in this context, and, as usual, more research is needed to assess these issues.

Localism, Self-Interest and the Tyranny of the Favored

Abstract: This article tests the normative theories offered in support of decentered local government against the empirical reality of modern metropolitan politics in the United States. Localism, or the ideological commitment to decentralizing power to local government, is premised on the normative values of promoting democratic citizen participation, efficiency, and community. The localist, public choice vision would vest maximum authority in individual municipalities, empowering citizens of like tastes and preferences to chart their collective social and economic destiny. In contrast to this normative vision, the article offers empirical and anecdotal evidence of the "tyranny of the favored quarter," drawing heavily on the political science, economics and metropolitan policy literature. In most American metropolitan regions there are high-growth, developing suburbs which typically represent about 25 percent of the entire regional population but which also tend to capture the largest share of the region's public infrastructure investments and the largest share of its job growth. Yet, through retention of local powers, the favored quarter is able to avoid taking on any of the region's social service burdens. And the majority of the metropolitan population--citizens who live in central cities and older suburbs--often subsidize and are negatively impacted by the growth of the favored quarter. Viewed from a regional perspective, this dominance of the favored quarter is decidedly anti-majoritarian. In light of this evidence, the article concludes that the "localist" normative values are not well served by the localist paradigm and that these values are best vindicated in a regionalist model. The article offers an alternative vision of metropolitan governance--New Regionalism--that better distributes regional benefits and burdens and that better serves the purported values of localism. Under this model, local governments would continue to exist but would administer a smaller domain of local powers: they would cede control to regional fora on policy matters, like transportation and land use, that are truly regional in scope. But the citizens of the metropolis would collectively decide where to draw the line between local and regional powers. Thus, the New Regionalist model is premised upon an energized, democratic process that builds cross-border coalitions among citizens who are geographically stratified by race and income. Through such coalition building, metropolitan regional majorities can reclaim democratic processes and begin to redress some of the social and economic disparities of opportunity that flow from fragmented local governance.

Drive-Through Deliveries: Is 'Consumer Protection' Just What the Doctor Ordered?

Abstract: Although consumer protection against managed care has become extraordinarily popular in the last few years, there are good reasons to be skeptical about many of these legislative and regulatory efforts Few legislators have the necessary training or inclination to weigh the (often conflicting) evidence on the benefits of any given consumer protection Evidence on the costs of a consumer protection is frequently unavailable, and estimates are subject to considerable uncertainty The drafting of consumer protections is also readily hijacked by entrenched providers, who have their own interests at heart When these factors are coupled with the emotional overlay accompanying health care issues, and the off-budget feature of many of the reforms, it should come as no surprise that consumer protection against managed care is particularly prone to legislative posturing and overreaching This article analyzes the most popular consumer protection initiative to date: legislation limiting or eliminating the economic incentive for an "early" postpartum discharge -- commonly referred to as a "drive-through" or "drive-by" delivery Once the issue came to public attention, these laws were enacted throughout the nation with breathtaking speed Despite this overwhelming legislative enthusiasm, the case for such a law is actually extraordinarily flimsy There is little or no evidence indicating postpartum stays of the specified length provide any benefit, regardless of how one defines benefit Even if such stays provide a benefit, it does not follow that the benefit justifies the associated cost, or that the same results can not be achieved in some other way at lesser cost The law also creates perverse incentives for the coverage of post-discharge services and coverage decisions in general The campaign against drive-through deliveries also illustrates some problems familiar to students of regulatory theory The case for extended postpartum stays was based almost entirely on wrenching (but extraordinarily unrepresentative) horror stories The reforms exploited social reluctance to make explicit cost/benefit tradeoffs in matters of public health and safety When legislators faced even a portion of the costs of their decisions, the certitude with which they condemned drive-through deliveries developed some exceedingly large loopholes The health care providers who testified in favor of the proposed consumer protection neglected to mention that the issue was merely the opening salvo in their campaign against managed care -- and their preferred remedy was a return to the model of professional dominance whose excesses led to managed care in the first place Worse still, the campaign distracted attention from far-more serious problems with the quality of American medicine, and made it less likely those problems will ever be addressed The only clear winners from the campaign against drive-through deliveries were physicians, who framed the normative boundaries of the debate over the regulation of managed care in their favor, and set the stage for additional doctor-friendly regulation An extended postpartum stay turns out to be just what the doctor ordered, but such stays turn out to be for the physician's benefit, not the patient

Rereading Cady, Roberts: The Ideology and Practice of Insider Trading Regulation

Abstract: William Cary's opinion in the Cady, Roberts case is seminal in the development of modern insider trading regulation. This paper revisits three ideas that were important to the decision and that remain contested today. First, it explores the "why regulate?" question, to which Cary replied (as Justice Ginsburg recently did once again in O'Hagan) in terms of the familiar investor confidence rationale. The paper considers, in a not unsympathetic way, the role of insider trading regulation as a useful myth within the structure of seccurities regulation. Second, it revisits the "possession versus use" question raised in Cady, Roberts and so many cases since. Third, it addresses the question of why insider trading regulation for so long has avoided definition and rulemaking in favor of open ended standards.

The Richness of Contract Theory

Abstract: In his book, "The Richness of Contract Law," Robert Hillman criticizes "highly abstract" or "unifying" contract law theories that, he says, fail to reflect adequately the complexities of existing contract law. In his review, "The Richness of Contract Theory," Randy Barnett takes issue with this claim and identifies the generational dispute between legal "realists," whose approach is shared by Professor Hillman, and legal "theorists" of whom Hillman is critical. Professor Barnett's thesis is that the very purpose of modern legal theories is to simplify a complex reality so as to better understand, cope with, and reform legal doctrine. Barnett then discusses Hillman's recent important empirical research on promissory estoppel. Hillman's findings represent a partial corrective to the previous consensus against a "reliance theory" of promissory estoppel insofar as they establish that reliance is a necessary element of promissory estoppel. However, his data also support the Willistonian conception of promissory estoppel by showing that a promise is also required. Ironically, Hillman is, Barnett claims, insufficiently sensitive to the complexity of the cases he surveys and the need to distinguish "reasonable" or "justified" from "unreasonable" or "unjustified" reliance. A more sophisticated analysis of these cases is provided by Professor Sidney DeLong who also is, not coincidentally, more receptive than Hillman to the richness of modern contract theory. While supporting Hillman's finding concerning the requirement of reliance, DeLong also notices courts frequently distinguishing "performance" from "enforcement" reliance. Enforcement reliance is reliance accompanied by a manifested intention by the promisor to be legally bound, or what Barnett has previously called consent.

Half-Truths: Protecting Mistaken Inferences by Investors and Others

Abstract: The concept of the "half-truth" -- the idea that the truth can be misleading if some important qualifier has been concealed -- has not been given much theoretical attention by either courts or commentators. Rather, the potentially misleading character of something that is by itself technically true is simply treated as a fact question. This paper is an effort to explain the half-truth doctrine, and show why courts apparently apply it more restrictively in securities cases than in common law fraud cases. The key insight comes from situating the half-truth roughly half way between the true misstatement and the failure to speak at all, and seeing the "normative" issue as one of what inferences a listener or reader should draw in light of background norms about how forthcoming the speaker is reasonably expected to be on a particular topic. The background norm in securities cases includes an ability to conceal (though not actively lie about) proprietary matters such as research and marketing initiatives. In this environment, in contrast to the settings in which many of the common law cases arise, a narrow use of the doctrine is appropriate. This leads to a theory of corporate discourse for fraud purposes that can be employed in other related subjects, such as the duty to update and the treatment of "general expressions of optimism."

Heightened Pleading and Discovery Stays: An Analysis of the Effect of the PSLRA's Internal-Information Standard on '33 and '34 Act Claims

Abstract: This Article presents a new model for analyzing securities-fraud claims. It then discusses the pleading and stay-of-discovery requirements enacted by Congress in the Private Securities Litigation Reform Act of 1995 (the "Reform Act"), arguing that the combined impact of these provisions is likely to be overinclusive. The Reform Act's pleading standard is best understood in light of the common law preceding it. To survive a motion to dismiss under pre-Reform Act pleading standards, plaintiffs had to plead specific types of facts derived from internal company information. Plaintiffs met this internal-information standard through the use of the Federal Rules of Civil Procedure's liberal discovery provisions. The Reform Act, aimed at abusive securities litigation, both prohibits such discovery and heightens the pleading standard necessary to survive a motion to dismiss. By combining these reforms, the Reform Act implements a standard that is outcome-determinative and, if strictly applied, virtually impossible to meet. Early decisions under the Reform Act illustrate the outcome-determinative impact of these provisions and reveal that despite Congress's stated intent to resolve the circuit split on the applicable pleading standard, the Reform Act's language and legislative history have left the courts in a quandary. As a result, the beginning of a new circuit split is already apparent. To resolve these problems, I propose that Congress repeal the stay-of-discovery requirements and, instead, adopt managerial-judge provision to process securities-fraud claims. Such a mechanism would better balance the competing goals of protecting markets and defendants and limiting so-called abusive litigation. Finally, I consider whether the Reform Act's pleading standards apply to claims pursuant to the Securities Act of 1933 ("Securities Act") and conclude that, contrary to their practice before the Reform Act, courts should not apply the new scienter-based pleading standard to the negligence and strict-liability claims of the Securities Act. I support this argument with references to both the Reform Act's plain language and legislative history, and the Securities Act's purpose. The post-Reform Act decisions considering this issue have relied on pre-Reform Act case law without considering whether the Reform Act changed that law, resulting in some incorrectly applying the pleading standards to plaintiffs' claims under the Securities Act.

Redefining the State's Response to Domestic Violence: Past Victories and future Challenges

Abstract: What role should the state play in the fight against domestic violence? Although most activists in the early domestic abuse movement viewed government institutions with a robust dose of suspicion, over time they began to look to the state for substantial assistance. During this period ― the late sixties and seventies ― increased hope for a positive governmental role appeared to be well-founded. The civil rights, feminist, and labor movements had pushed the federal government into expanding civil liberty guarantees and economic protections. Laws were enacted prohibiting sex- and race-based discrimination, health care got a strong boost through the creation of Medicaid and Medicare, and workplace safety guarantees were expanded. And in the seventies and eighties, on the domestic violence front, state legislatures enacted civil protection order statutes that were the first laws specifically designed to protect victims of intimate abuse.

Hospital Conversions: Fact, Fantasy, and Regulatory Follies

Abstract: For-profit enterprise is the norm in most of the economy, but in the hospital sector, nonprofit entities have long had a dominant share of the market. In recent years, the conversion of many nonprofit hospitals to for-profit status has prompted concerns and complaints. The conventional wisdom is that large for-profit chains have been systematically buying and converting non-profit hospitals at bargain-basement prices, and the public interest has been slighted -- especially since non-profit hospitals are alleged to deliver many more community benefits than for-profit hospitals. Commentators have complained about the "dissolving" of the nonprofit sector, and a "Pac-Man like assault on community hospitals." In response, many states have enacted legislation setting ground rules for such conversions, including giving the state Attorney General the power to approve the terms of such transactions, mandated consideration of the impact of the conversion on access to health care services, and a variety of restrictions on post-conversion conduct. The article analyzes the empirical evidence, and demonstrates that the conventional wisdom on hospital conversions is wrong. Despite popular perceptions to the contrary, the market share of for-profit hospitals has hardly moved during the past two decades. Nonprofit to for-profit hospital conversions are a distinct minority of total conversions, which in turn are a modest percentage of total hospital control transactions. Although there have been some conversions which occurred at less than fair market value, a General Accounting Office study indicated that independent valuations or fairness opinions were the rule, and in every transaction for which information was available to the GAO, the purchase price exceeded the independent valuation, or fell in the middle of the range of value. Regardless, the case that nonprofit hospitals are particularly virtuous is problematic at best; there is considerable evidence that nonprofit and for-profit hospitals behave similarly, and the Department of Justice and Federal Trade Commission have consistently argued (and Courts have consistently accepted) that organizational form is irrelevant for purposes of analyzing conduct. In addition, studies of hospitals that have converted from a nonprofit to for-profit form suggest that institutional behavior is relatively static. Hospital conversions do raise a number of interesting and difficult transitional problems, including the terms under which the deal is struck and the uses to which the proceeds may be put post-conversion. Unfortunately, the laws which the states have enacted do little to address these transitional problems. In reality, the hidden agenda of these laws is to sabotage the conversion process -- or increase the costs and inconvenience associated with a for-profit conversion to the point that it becomes simpler to sell to a nonprofit acquiror. These laws are really intended to protect the nonprofit status quo in the hospital sector. Although the issues raised by conversions are important, they are ultimately peripheral to the more important normative public policy questions -- what services, cross-subsidies, and intangible elements of value do we want hospitals to provide, and what is the most efficient way to secure these services? The fixation of advocates and legislators on the perils of hospital conversions is a distraction from these far-more difficult issues. The current regime, which employs an undifferentiated subsidy tied to organizational form, with only an anti-inurement constraint to restrict opportunism, has little to recommend it. The correct strategy is to focus our attention and incentives on behavior -- not organizational form.

The Vertical Separation of Powers

Abstract: Standard understandings of the separation of powers begin with the concept of function The author argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure To illustrate this point, the article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v Olson, Clinton v Jones, and the Supreme Court's more recent federalism decisions In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive and political relationship In order to move away from function as the sole proxy for structural risk, the article suggests a "vertical" approach toward separation of powers questions That approach reconceives departmental power less as the power to perform a set of tasks fitting a particular constitutional description (eg, adjudication, execution, legislation) than as a set of constitutionally created political relationships between the people and those who govern them Put another way, the separation of powers becomes less a search for transcendental descriptions of the departments than a means of considering how shifting structure affects liberty -- how structural incentives may incline governmental actors to act toward the people in ways that risk the electoral powers of both majorities and minorities

Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholars

Abstract: A new trend in criminal justice scholarship argues that constitutional restrictions on police discretion, necessary to protect minorities in the civil rights era, have outlived their usefulness, and now actually hamper the protection of minority interests. The rise in interest in "quality-of-life" policing, among other things, has led to a positive reevaluation of police discretion, and has a consequent critique of judicial doctrines that are said to restrict such discretion. This article takes on this new school of criminal justice scholarship. It argues that its proponents have made five mistakes. First, they have misdiagnosed the problem, because in fact constitutional doctrine already gives the police a wide range of unregulated discretion. Second, they underestimate the extent to which race discrimination remains a pervasive problem in criminal justice. Third, the new scholars have mistaken a specific concern for race discrimination as the doctrine's general purpose, and in so doing ignore the dangers of discrimination within minority communities. Fourth, the new scholars fail to acknowledge the significant difference between official abuse and private criminal victimization, which explains the very different reactions to, for example, the recent New York police killing of Amadou Diallo and any number of private murders of black men there. Finally, and most fundamentally, the new scholars fail adequately to account for the important role that controls on discretion play in maintaining the criminal law's legitimacy.

Asylum in practice : successes, failures and the challenges ahead

Abstract: The Workshop on Refugee and Asylum Policy in Practice in Europe and North America was organized to facilitate a transatlantic dialogue aimed at understanding just how well these asylum systems are balancing the dual goals. The Workshop was convened by the Institute for the Study of International Migration (ISIM) of Georgetown University and the Center for the Study of Immigration, Integration and Citizenship Policies (CEPIC) of the Centre Nationale de Recherche Scientifique, with the support of the German Marshall Fund of the United States. It was held on July 1-3, 1999, at Oxford University. The workshop examined key issues as to the workings of the U.S. and European asylum systems: decision making on claims, deterrence of abuse, independent review, return of rejected asylum seekers, scope of the refugee concept, social rights and employment, international cooperation, and data and evaluation. In this opening paper, we explain the significance of these issues and raise central questions about them.

Laughing at Treaties

Abstract: This article responds to two articles by Professor John Yoo appearing in the same volume. Professor Yoo maintains that treaties, either categorically or presumptively, have the same status in the United States as in the United Kingdom, where they lack the force of domestic law, and hence are not judicially enforceable, until implemented by statute. This response argues that Yoo's thesis contradicts the text of the Constitution, which declares treaties to be the 'law of the land.' The response notes, further, that Professor Yoo's reliance on the ratification debates to read the Supremacy Clause's reference to treaties out of the Constitution rests on an undefended and implausible version of originalism which regards as binding a supposed agreement reached by Federalists and Anti-Federalists at certain ratifying conventions to read the Constitution in a way that conflicts with the text. The response goes on to explain that, in any event, Yoo's thesis cannot be squared with longstanding precedent, and that Yoo's claim that his thesis is supported by the Constitution's structural commitments is question-begging and unpersuasive.

Competition policy for global markers

Abstract: Proposals for international action on competition policy respond to four problems: increasing transnational anti-competitive activity outside control of any single nation, enforcement conflicts, market access problems, and unnecessary costs of compliance with multiple national regimes. All four are real, but limited, problems, though transnational anti-competitive activity could be very significant in the future. A competition code in the WTO would process competition problems principally as market access problems. The resulting arrangement would address market access issues imperfectly, and the other three problems not at all. International initiatives in this area must facilitate cooperation among competition authorities. The best approach is to pursue a mix of bilateral, OECD, and WTO initiatives which places protection of consumers from anti-competitive activities at the center of international efforts. Copyright 1999 by Oxford University Press.

A Multilateral Agreement on Investment: Would It Undermine Subnational Environmental Protection?

Abstract: Investors in the United States and other countries have a significant and growing stake in overseas business operations. The U.S. government is a leading proponent of a proposed OECD agreement to protect foreign investors from “discriminatory and distorting” government practices and to assure the free flow of capital across international borders. This agreement, a proposed Multilateral Agreement on Investment (MAI), would give cross-border investors greater protections than currently provided by NAFTA and the Uruguay Round agreements. OECD negotiators have stated that one of their goals is to curtail the powers of subnational governments in ways that go beyond NAFTA and the World Trade Organization. This article's purpose is to examine the potential impact of a proposed MAI on state and local environmental policies and practices and identify actions state policy makers can take to preserve their authority to accommodate local preferences in protecting natural resources and the environment.

Deconstructing Section 11: Public Offering Liability in a Continuous Disclosure Environment

Abstract: This paper considers whether the prevailing liability structure under Section 11 of the Securities Act of 1933 makes sense as applied to large capitalization issuers. This, in turn, requires an evaluation of whether the alternative structure for liability, that under Rule 10b-5 and the periodic disclosure requirements of the Securities Exchange Act of 1934, is sufficient or deficient in terms of promoting adequate disclosure. The paper suggests some fine-tuning under the '34 Act designed to bring better external certification, particularly by accountants, into the picture. More radical reforms are justified under the '33 Act, including the essential abandonment of underwriter due diligence liability.

Liberalism and Abortion

Abstract: First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves Her argument is complicated and subtle, but its basic thrust can be readily summarized A woman's right to an abortion, McDonagh argues, should be understood as a right to defend herself against the non-consensual invasion, appropriation, and use of her physical body by an unwelcome fetus, rather than as a right to choose medical procedures free of interference by the state Therefore, the woman's right to terminate a non-consensual pregnancy should be understood as part and parcel of her paradigmatically liberal right to defend herself against any assaultive appropriation by others of her physical self Two implications follow from McDonagh's re-framing of the basic right to terminate a pregnancy, both of which are of great significance to the abortion debate First, if the right to an abortion is indeed best understood as a right to defend oneself against the non-consensual appropriation and use of one's body by a fetus, then it no longer matters whether or not the fetus is a "human being" or a "person"; a woman, no less than a man, has a right to defend herself against the non-consensual appropriation and use of her physical body by any human life, born or unborn, whether or not that person is genetically linked, whether or not that person is an intentional agent, and whether or not that person is a fetus, an infant, or an adult Given McDonagh's premises, the "personhood" of the fetus is no longer fatal to the right to an abortion; in fact, if anything, this characteristic clarifies the right's contours Second, so re-framed, the right as defined by McDonagh strongly implies a correlative right to state funding In liberal societies governed by the rule of law, we typically have not only a right to defend ourselves against non-consensual appropriations of our bodies or body parts, but we also have a firm expectation (whether or not a right) that the state will assist us in perfecting that defense The very raison d'etre of even a bare bones, minimalist, night-watchman state requires as much States exist, largely, to ensure that we are protected against precisely such assaultive invasions To whatever degree the state protects individuals against invasive assaults by others, the state must provide comparable protection for those suffering non-consensual pregnancies The only way it can do so, realistically, is by funding abortionsFor both reasons, McDonagh's argument, if successful, is not only provocative but practically and politically important If it is a good argument, it should be embraced and propounded by both the political and legal wings of the pro-choice movement It gives an argument for abortion rights that implies the right to funding which is strengthened rather than weakened by the increasingly apparent humanity of the fetus, and it does so through the traditional legal method of analogizing pregnancy and fetal life to lived experiences and circumstances which, if not exactly common, are at least potentially available to all of us It ought to embolden and empower the embattled abortion rights movement, even while it occasions a rethinking of the legal and moral assumptions that to date have overdetermined the logic of that movement's central arguments

Codetermination and Corporate Governance in a Multinational Corporation

Abstract: The article analyzes employee codetermination in corporate governance by comparing American and German systems of corporation and labor law and assesses how the systemic differences affect the internal governance of a multinational corporation. It examines what happens when the two systems of corporate law and labor relations merge and consequently come into conflict?as when a German corporation merges with an American corporation to form a truly multinational entity. Using the Daimler-Chrysler merger as an illustration, the article argues that codetermination in a multinational enterprise creates an incentive for managers to appease home country (German) employees at the expense of foreign labor. The prospect for opportunistic alliance among managers, shareholders, and domestic employees suggests that codetermination in a multinational enterprise imposes distributional costs on foreign workers and perhaps also efficiency loss for the corporation.

Law Firms, Competition Penalties, and the Values of Professionalism

Abstract: Virtually all courts that have considered the issue have held that law firms cannot enforce agreements that impose reasonable financial penalties on lawyers who leave the firm and take clients with them. This is the case despite the fact that practice organizations in all other professions, such as medicine, accounting, and engineering, are able to enforce such provisions. The Article uses this resistance as the vehicle for exploring broader issues relating to concerns about the loss of professionalism in modern law practice. The first is the common tendency to dichotomize between law practice as a business and as a profession. This distinction ignores the complex ways in which these two dimensions of practice are intertwined. In particular, the use of business measures that make a law firm more efficient may create a competitive advantage that affords an opportunity for the firm to further non-economic values. The second issue is the failure to appreciate that the concept of professionalism involves multiple values: (1) devotion to the client's interest (2) the control over work exercised by the practitioner of a craft and (3) the exercise of independent judgment as a steward of the legal system. These values have the potential to be either conflicting or complementary. An assessment of developments in law practice thus must examine the extent to which the realization of specific values in particular settings may be furthered or hindered by such developments. A final point is the potential importance of law firms in providing an opportunity for lawyers to reconcile these values in daily practice. The Article argues that enforcing reasonable penalties can provide law firms with the economic stability that enables them to sustain a distinct institutional culture that is not wholly market-driven. This perspective underscores that allegiance to professional values is not simply a matter of individual character, but is dependent in important ways on larger organizational structures of law practice. In short, realizing the values of professionalism may be more of a collective, rather than individual, achievement in the dynamic and tumultuous world of contemporary practice.

The Zealous Advocacy of Justice in a Less than Ideal Legal World

Abstract: In The Practice of Justice, William Simon addresses a widely recognized dilemma -- the moral degradation of the legal profession that seems to be the unpleasant by-product of an adversarial system of resolving disputes -- with a bold claim: Lawyers involved in either the representation of private rights or the public interest should be zealous advocates of justice, rather than their clients' interests If lawyers were to do what this reorientation of their basic identity would dictate -- that is, if lawyers were to zealously pursue justice according to law, rather than zealously pursue through all marginally lawful means whatever ends their clients happen to desire -- the moral quality of litigation would improve, as would the reputation of the bar, and likewise the justice of the law itself? But even more telling, for Simon, a system under which lawyers understood the "practice of law" to mean the practice of justice, rather than the zealous but amoral advocacy of clients' ends, would confer meaning and moral purpose in a life presently constructed so as to be dangerously devoid of bothLawyers' professional lives are presently experienced as amoral, Simon argues, because they are amoral, but not for the reason often given by the members of the retiring bar themselves: That ungentlemanly, unprofessional, market-driven, young lawyers have forgotten their manners in pursuit of the legal buck, and have made life nasty and brutish for everyone Nor is the lawyer's amorality in any way tied to the nihilistic excrescences of contemporary theoretical understandings of law, as argued by some contemporary scholarship on the subject Rather, according to Simon, the amorality of lawyering stems directly from the stated ideals and aspirations of the profession itself The ideal of lawyering espoused by the profession, and memorialized by the various codes of ethics that govern it, strips the lawyer of responsibility for the moral quality of not only his clients' ends but also of his own actions taken on his clients' behalf -- and all on the dubious bet that by so doing, the system, in some mechanistic and formalistic manner, will almost miraculously crank out justice as the outcomeThe bet at the center of this "dominant view," as Simon dubs it, is not a good one -- justice is not going to be the miraculous product of a system in which none of the actors are required to pursue it The lawyer knows this full well, furthermore, and as a consequence both the lawyer and society bear a loss -- society by being saddled with a profession that permits and seemingly requires that individual lawyers aggressively pursue injustice and the lawyer by being saddled with a life-long and deeply hurtful existential alienation from his work To address the harm, we need, essentially, to reorient the profession by redefining its core moral identity The lawyer should indeed zealously advocate, but he should zealously advocate for justice, not for the satisfaction of the preferences of his particular clienteleSimon is not alone in this view, and he is not the first to address the apparent amorality of lawyering with an argument that what the bar must do is drastically restructure the lawyer's adversarial role, rather than explain it to a doubtful public who obstinately fail to appreciate its social value In fact, an entire school of criticism of adversarial ethics -- a criticism which Simon, following convention, calls the "role morality" or sometimes the "personal morality" critique -- has, over the last twenty years or so, sown seeds of doubt regarding the dominant view "Role morality" critics fault the traditional adversarial model for its tendency to limit the moral obligation of the lawyer to his client, and to minimize to almost nothing the ordinary moral obligations that the lawyer, but for his professional role, would owe to others

Medical Care and the Enigma of Efficiency

Abstract: Across a wide ideological spectrum, a standard wisdom now prevails in discussion of the law and policy of health care provision. In its essence, this wisdom holds that health policy should seek to deploy medical resources in a systematically rational manner, so as to maximize the clinical benefits that every dollar buys. This overarching conception of government's role frames debate over what health care law should seek to accomplish. In so doing, this conception rests the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what rationality requires. I argue in this paper that we are nowhere near to being able to agree upon such understandings. The quest for rational allocation of medical resources is beset by incomplete, conflicting, and shifting conceptions of what rationality requires. Our cognitive limitations, scientific ignorance, and normative disagreements underlie this pervasive uncertainty and instability. I first review the standard wisdom to show how pervasive and protean this problem is. The confused, even chaotic state of American health care law and policy today reflects our partial, inconsistent, and unstable approaches to rationality. In making systemic rationality the lodestar of medical resource allocation, we risk falling so far short of our goal as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define our aims more modestly, consistent with a picture of rationality as limited by context, discontinuous across different settings, and changeable with time. This inelegant picture, I suggest, opens the way toward a health policy that mediates wisely between our desire for public action to maximize the well-being of the many and our intimate wishes to be treated non-instrumentally, as separate ends. I conclude with an effort to identify the aspirations such a health policy should serve and to suggest how a strategy of accommodation among these aspirations might apply to a diverse range of legal controversies.

The Vanishing Case for Flat Tax Reform: Growth, Inequality, Savings, and Simplification

Abstract: In the short run, the Flat Tax decreases the tax burden on the upper classes and increases taxes for everyone else Consequently, Flat Taxers must make a controversial claim to demonstrate a net improvement in the economic position of the middle and lower classes: that the Flat Tax will cause enough economic growth to raise incomes of the middle and lower classes by more than the increased taxes that the Flat Tax would require them to pay However, the actual performance of the US economy since 1983 has seriously undermined this claim in two critical respects First, despite the progressive rate income tax, there has been substantial economic progress, including the longest period of sustained peacetime growth in our history and the lowest rates of unemployment and inflation in decades Had the Flat Tax been enacted, it is doubtful that it could have stimulated much more growth than in fact occurred Second, during the past fifteen years, economic growth has not benefited all economic classes to the same degree The upper classes have reaped most of the gains The rising tide has lifted the biggest boats much more than all others As a consequence, economic inequality has increased (Had the Flat Tax been in effect, reducing taxes on the rich and raising taxes on everyone else, economic inequality would probably have increased even more than it actually has) This history of growing inequality suggests that, even in the unlikely event that the Flat Tax had generated significant extra growth, it is doubtful that middle and lower class incomes would have risen enough to offset the higher burden that the Flat Tax would impose on them