Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Global health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Upending Status: A Comment on Switching, Inequality, and the Idea of the Reasonable Person

Abstract: This article reviews Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, by Cynthia Lee (2003).Cynthia Lee has written a hard-hitting and insightful book on bias and the law of homicide. Her purpose is to document how murder law’s “reasonable person” may absorb the unreason of prejudice in its various forms (from biases of race to gender to sexual orientation). Doctrinally, Lee’s book is wide-ranging and ambitious, covering a variety of standard defenses, such as provocation (chs. 1–3) and self-defense (chs. 5–7), in contexts ranging from excessive use of force to intimate homicide, from hate crimes to cultural defenses. This offers opportunities to discuss cultural stereotypes as diverse as the “black-as-criminal” (pp. 138–46), the Mexican-American as “foreigner” (p. 155), and the Asian-American as “model-minority” (pp. 160–65). All of this is presented with the help of some of the most infamous of criminal cases of the past decades — the police shooting of Amadou Diallo (pp. 175–76), Matthew Shepard’s hate-filled death (pp. 74–75), and the made-for-tabloid Jenny Jones case (pp. 67–69). As these latter elements suggest, this book is clearly intended not only for a scholarly audience but also a popular one. And yet, there is a scholarly aim here and an important one: to force systematic reconsideration of one of the more basic questions of the criminal law — the nature of the “reasonable person.” The author applauds Lee for turning us to this question; too many basic issues in the criminal law remain understudied, particularly from the perspective of one interested in problems of bias. To be sure, scholars will be familiar with some of the more particular arguments found here. Lee embraces Donna Coker’s critique of the highly controversial Berry case (p. 44), and weighs in on the debate between Robert Mison and Joshua Dressler about the proper response to the “gay panic” cases (ch.3, pp. 241–44). Lee borrows Charles Lawrence’s idea of unconscious racism to illuminate police claims of self-defense (pp. 181–83) and, like Jody Armour, Lee interrogates racial stereotypes of aggressiveness and passivity (pp. 183–84). Lee repeats a variety of my examples and judgments on the “hidden normativity” of provocation law (pp. 8, 33–43, 65–66) and reprises Dan Kahan and Martha Nussbaum’s view of evaluative emotion in the criminal law (pp. 230–34). The strength here is not in any particular argument but how they are woven together to show us a pattern that none of these more particular arguments, alone, suggest. Important and unanswered doctrinal questions are raised, and at the same time, these recede before the larger, and more important, question of whether the criminal law invites bias in the guise of the “reasonable person.”

Cross-Waivers of Liability

Abstract: Sheer pragmatism is developing a new principle in space law. That principle is that the parties to an activity in outer space, who stand to benefit from that activity, shall share some of the risk of that activity. These parties may enjoy more benefits from outer space activities if they themselves assume responsibility for damage that they may cause to the others involved in that same activity because litigation and insurance costs are saved. The National Aeronautics and Space Administration (NASA) has for a long time required contractual cross-waivers of liability between its launch operations and the owners of payloads being launched. 1/ The principle of crosswaivers is developing in other areas: launches under the U.S. Commercial Space Launch Act, activities under the space station agreement, space shuttle operations, NASA expendable launch vehicle (ELV) programs, and the principle is being adopted in launch contracts outside of the United States. The cross-waiver principle has been received so favorably that even wider adoption can be predicted in the future.

Considering What is Voluntary in Relation to Resident Referrals. Comment on "A Retrospective Cross-Sectional Review of Resident Care-Seeking at a Physician Health Program".

Abstract: To the Editor: Parry and colleagues’ [1] recent report on residents’ presentations to their physician health program (PHP) raise a number of key issues pertaining to voluntary referrals that are important to clarify in order to resolve points of confusion in academic medicine. While the authors define “voluntary referrals [as] participants who sought services of their own accord,” other definitions consider the presence of controlling external influences and perceptions of threat when determining voluntariness [2]. From a legal perspective, residents referred when there is any expectation that their program will receive or request results, ask residents follow-up questions, or learn whether they participated, would not be considered voluntary [3]. Nor would referrals for evaluations performed by an agent of the program or hospital be considered voluntary [3]. Similar principles also apply to signed waivers of confidentiality. It is not clear how the authors’ considerations of voluntariness accord with these later definitions. But any discrepancies, if they exist, would be concerning from a public policy perspective if they reflect and/or promote very different understandings about the laws that apply to these referrals in the legal and medical communities. We have many questions for Parry and colleagues (e.g., why they think it is important for residents to voluntarily engage in services at their PHP as opposed to other providers; why they are making the case for residents to engage voluntarily to residency programs/employers and not to the residents themselves, etc.) and concerns related to PHP research and outreach. But we agree that increasing the proportion of resident intakes that truly are voluntary should be an important goal. We are therefore hopeful that the authors, and all PHPs, residency programs, and academic medical centers, will consider posting the text of the federal law relating to these referrals [3, 4] on their websites, in institutional handbooks, and other resources, in order to prevent nonvoluntary referrals that do not comply with the law. Under the Americans with Disabilities Act, programs and hospitals cannot implicitly or explicitly request psychiatric information from, or require a psychiatric evaluation of, a resident without objective evidence that:

Exporting DMCA Lockouts

Abstract: In her lead paper for a symposium in her honor, Margaret Jane Radin warns that our intellectual property laws are being rewritten in ways that neglect values embedded in neighboring legal subdisciplines, such as contract, competition, and free speech law The effect has been to aggrandize the rights of intellectual property holders, at the expense of others in society In my comment, I apply her elegant insight to an oft-neglected realm: our spirited efforts to export our ever-strengthening intellectual property law through bilateral trade agreements Radin critiques the Digital Millennium Copyright Act's anti-circumvention provisions, which some companies have cleverly sought to deploy to bar competition in the after-market Companies are seeking to exploit DMCA anti-circumvention to obtain monopolies, with varying success, in unexpected areas such as garage door openers, printer cartridges, and online multiplayer games I show how, through bilateral and regional free trade agreements, the United States is exporting the DMCA's controversial and strict anti-circumvention provisions All of the free trade agreements negotiated by the United States post-DMCA mandate the adoption of anti-circumvention provisions by our partners A review of each of these agreements demonstrates that they carry the DMCA's cramped vision of permissible circumvention They thus ignore what Radin describes as the legal milieu of intellectual property, in particular, competition law, foisting upon our trading partners rules that corporations may exploit to gain monopolies in the after-market for their products This leads to the irony that measures to free trade might lead to a legal framework that facilitates monopolies in the after-market

More on the Conceptual and the Empirical: Misunderstandings, Clarifications, and Replies

Abstract: At the invitation of the Editors of Neuroethics, we wrote an article (entitled, “Minds, Brains, and Norms”) detailing our views on a variety of claims by those arguing for the explanatory power of neuroscience in matters of law and ethics. The Editors invited comments on our article from four distinguished academics (Walter Glannon, Carl Craver, Sarah Robins, and Thomas Nadelhoffer) and invited our reply to their critique of our views. In this reply to our commentators, we correct some potential misunderstandings of our views and further clarify our positions with discussions of the conceptual-empirical distinction, rule-following, explanations at the personal and subpersonal levels, memory, and lie detection. Although we acknowledge many of the criticisms advanced by our distinguished colleagues, we conclude that, in several important respects, their criticisms confirm the points made in our original article.