3320 research outputs found
Sort by
The Rules of the Game and the Morality of Efficient Breach
Get PDFMoralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches—those that are opportunistic, obstructive, or otherwise inefficient—as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La Règle du Jeu (“The Rules of the Game”), illustrates what more sophisticated moral criticisms of the theory might look like. Renoir’s film depicts a society in which marital infidelity is a transgression that is tolerated, but only when done according to society’s rules. Renoir’s attitude toward that society suggests that moral critics of the efficient breach theory should focus not on its celebration of efficient breach, but on the value of the sort of moral community it imagines and on the theory’s effect on parties who are not playing the efficient breach game, whether because they do not understand its rules or because they seek a different type of obligation. The comparison to the film also highlights the theory’s own narrative elements, which both add to its persuasive power and, once identified, mark out its limits
Contract Exposition and Formalism
Get PDFFormalism in contract law has had many defenders and many critics. What courts need, however, is an account of when formalist approaches work and when they do not. This article addresses that need by developing a general theory of the rules of contract interpretation and construction—contract “exposition.” The theory distinguishes inter alia two forms of formalism. Formalities effect legal change by virtue of their form alone, and thereby obviate interpretation. Examples from contract law include “as is”, the seal and boilerplate terms. Formalities work when parties intend their legal effects, that is, when they perform juristic acts. Plain meaning rules, in distinction, function by limiting the evidence that goes into interpretation. Plain meaning rules thereby give extra weight to the semantic, or literal, meaning of the parties’ words, though not to the full exclusion of the parties’ purpose or intentions, or pragmatic meaning. Like formalities, plain meaning rules are well suited to juristic acts, although they do not presuppose them. Many rules of contract law, however, are designed to attach legal consequences to parties’ nonjuristic acts, when parties might not be thinking about the legal effect of their words. When applying those rules, formalism of either form is more likely to result in erroneous outcomes. After canvassing other factors relevant to the choice between formalist and nonformalist rules of contract exposition, this article applies the theory to critically evaluate how courts determine whether a writing is integrated, an important but understudied component of the parol evidence rule
FDA-Required Tobacco Product Inserts & Onserts – and the First Amendment
Get PDFIn 2012, a federal court of appeals struck down an FDA rule requiring graphic health warnings on cigarettes as violating First Amendment commercial speech protections. Tobacco product inserts and onserts can more readily avoid First Amendment constraints while delivering more extensive information to tobacco users, and can work effectively to support and encourage smoking cessation. This paper examines FDA’s authority to require effective inserts and onserts and shows how FDA could design and support them to avoid First Amendment problems. Through this process, the paper offers helpful insights regarding how key Tobacco Control Act provisions can and should be interpreted and applied to follow and promote the statute’s purposes and objectives. The paper’s rigorous analysis of existing First Amendment case law relating to compelled commercial speech also provides useful guidance for any government efforts either to compel product disclosures or to require government messaging in or on commercial products or their advertising, whether done for remedial, purely informational, or behavior modification purposes
The Limits of Mobility and the Persistence of Urban Inequality
Get PDFDavid Schleicher\u27s Article, Stuck! The Law and Economics of Residential Stagnation, draws much-needed attention to the consequences of declining interregional mobility of low-income workers. However, this Response argues that Schleicher\u27s policy prescriptions evince a blind spot for the economic and racial stratification of disadvantaged populations within the successful metro regions these new migrants would enter. The concentration of highly skilled, educated, and affluent populations in the urban core, and the segregation and isolation of disadvantaged populations outside of it, impose additional costs on new migrants to access economic opportunities. Schleicher fails to sufficiently account for these costs, which offset the potential wage gains from mobility. Moreover, his focus on a few select “hot” metro areas ignores the resurgence of other cities that can, with the right policy interventions, expand economic opportunities for disadvantaged populations. If the federal government is to play a renewed role in redistributing economic opportunity, as Schleicher proposes, then it should do so by helping to bridge the spatial gap between that opportunity and disadvantaged populations both within and outside cities and metro regions
Supreme Court Institute Annual Report, 2016-2017
Get PDFDuring the U.S. Supreme Court’s October Term (OT) 2016 – corresponding to the 2016-2017 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students.
A list of all SCI moot courts held in OT 2016 – arranged by argument sitting and date of moot and including the name and affiliation of each advocate and the number of observers – follows the narrative portion of this report
The Global Health Law Trilogy: Towards a Safer, Healthier, and Fairer World
Get PDFGlobal health advocates often turn to medicine and science for solutions to enduring health risks, but law is also a powerful tool. No state acting alone can ward off health threats that span borders, requiring international solutions. A trilogy of global health law—the WHO Framework Convention on Tobacco Control, International Health Regulations (2005), and Pandemic Influenza Preparedness Framework—strives for a safer, healthier, and fairer world. This article critically reviews this global health law trilogy.
These international agreements are not well understood, and contain gaps in scope and enforceability. Moreover, major health concerns remain largely unregulated at the international level, such as non-communicable diseases, mental health, and injuries. The article promotes the lessons learned from 21st century international health law, which are that broad scope, robust compliance, inclusion of public and private actors, and sustainable financing are essential to success. It further explores the notion that in an age of nationalistic populism, collective action remains vital to ameliorate globalized health threats, helping realize the right to health.
Reforms to the “trilogy” of global health laws are necessary to assure success and provide a critical roadmap for the World Health Organization’s next Director-General. The article concludes by calling on the new WHO D-G to take additional action toward a safer, healthier and fairer world by pushing for novel global health laws on major health hazards, including noncommunicable diseases, mental health and injuries, and new initiatives such as universal health care
The World Health Organization’s Ninth Director-General: The Leadership of Tedros Adhanom
Get PDFIn May, the World Health Assembly elected Tedros Adhanom Ghebreyesus as its ninth Director-General, the first African to lead the World Health Organization (WHO) since its formation in 1948. Dr. Tedros faces a daunting task, with WHO facing a crisis of confidence after its much-maligned response to the West African Ebola epidemic. Does his leadership record bode well for the Organization’s future success? That success is vital to world health, as WHO alone has the international legitimacy to forge cooperative solutions to complex health challenges. Dr. Tedros’s record offers a sharp contrast between promise and peril for the Organization. As health minister for Ethiopia, Dr. Tedros forged unprecedented gains in population health; nevertheless, his country’s human rights record was abysmal during this same time period.
In a new Milbank Quarterly Early View op-ed, Lawrence O. Gostin explains that WHO is currently in an unvirtuous cycle. Member states have lost confidence in the Organization, while donors refuse to fully fund it, leading to additional dysfunction and failure. If Dr. Tedros is to succeed, he must regain badly eroded trust—not only among member states, but also among civil society
The Transposition of Power: Law, Lawyers and Social Movements
Get PDFVarious groups of people have been the victims of oppression throughout time and across national borders and cultures. Many forms of oppression continue to exist all over the world today, including in the United States. I have been particularly concerned with oppression on the basis of race. The responses to oppression have taken many forms, ranging from passivity and acquiescence to rebellion. Much of the response, however, takes place between these extremes, often in the form of ongoing collective action by more or less organized groups. Broadly speaking, these actions have come to be known as social movements, and they have been the subject of a great deal of scholarly examination. Through this scholarship, we have learned much about the nature of social movements, who joins them, and how they have been able to succeed. We have not learned as much about how the law and lawyers affect such movements and how, if at all, law and lawyers contribute to their success. I would like to examine these issues in an effort to elucidate the relationship between law, lawyers, and social movements and to better understand how lawyers can be helpful (or detrimental) to such movements.
My own interest in this field is somewhat more narrowly confined. For example, I have been skeptical of movements and lawyers who set as their goal the establishment of new or expansion of existing legal rights. New rights do not seem to have much social or political impact on subordinated groups, unless the holders of those rights have the power to enforce them. As an alternative to the rights discourse, I have been interested in the acquisition and utilization of power by marginalized and oppressed groups in the United States. Even more narrowly, my research has focused primarily on issues affecting the urban poor. Historically, there has been a significant intersection connecting social movements to urban poverty. The Civil Rights Movement, the Welfare Rights Movement, the Affordable and Fair Housing Movements, the Affordable Health Care Movement and the Black Lives Matter Movement among others, have had significant impetus from and impact on the urban poor.
Many of these movements succeeded in creating new rights for various groups. Many were successful in changing, to some extent individual lives and social environments. Nevertheless, we see today a society where wealth and well-being are even more polarized, often on the basis of race, and groups of people who remain subject to the same forms of intergenerational oppression as those faced by their long departed ancestors. These groups continue to exist on the wrong side of what I have previously called the “power deficit.” If this assertion is correct the dedicated and well-intentioned efforts of lawyers have had only marginal results. Thus, I take the position, as do several others, that lawyers who work with oppressed groups must assist them in gaining and using power rather than pursuing rights as an end in themselves.
That being said, there is little consensus among social scientists, philosophers, and lawyers on the meaning of power and virtually no legal literature on how it can be obtained and used (although a fair amount exists on the need to obtain and utilize it). “Of all the concepts used by sociologists, few are the source of more confusion or misunderstanding than power.” My intention in this paper is to dispel some of that confusion and to attempt to illuminate some issues concerning power in relation and as a response to oppression
The Missing Tax Benefit of Donor-Advised Funds
Get PDFThe second largest charitable organization in the country in terms of annual money raised is not the Red Cross, the Salvation Army, or the YMCA— it’s Fidelity Investments. The sixth largest is Charles Schwab Corp. Vanguard Group Inc. is No. 10. Needless to say, Fidelity, Schwab, and Vanguard are not running hospitals or soup kitchens. Rather, they are the three largest sponsoring organizations of donor-advised funds (DAFs).
DAFs are accounts established by contributions from charitable donors to a sponsoring organization that pools and manages many different DAFs. The DAF then makes distributions to operating charities based on the advice of the donor. Because the sponsoring organizations are, by definition, described within section 170(c), contributions by a donor into a DAF are tax deductible. Importantly, the DAF need not make any distributions immediately for the original donor to receive the deduction. Because the donation is to the sponsoring organization itself, and the sponsoring organization is a charitable organization, the original gift is fully deductible
Trump Picks Conservative ‘Dream Team’ for His Supreme Court List
No full textDonald Trump\u27s potential Supreme Court nominees were picked to mend fences with the Republican Party and to establish Trump’s conservative bona fides. Mending fences is good. But Supreme Court nominees should not be the hammer and nails with which to do it