Jacobs Institute of Women's Health

George Washington University Law School
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    1907 research outputs found

    Conflicts of Law and the Abortion War Between the States

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    On the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court agreed to hear the Dobbs case, at least twenty-four states have enacted statutes or state constitutional provisions restricting abortion access, while at least sixteen states have adopted new legal regimes that explicitly seek to protect the right to an abortion. These partisan and geographic divides create perhaps the biggest set of nationwide conflicts-of-law problems since the era of the Fugitive Slave Act before the Civil War. Indeed, practically every aspect of the new abortion legal landscape is now characterized by uncertainty, creating potential constitutional and federal preemption questions, state v. state conflicts of law issues, and new concerns based on various forms of private regulation related to abortion access. This Article seeks to provide a comprehensive survey of the current state of the law with regard to how such conflicts-of-law questions might be resolved in the abortion context. Part One briefly surveys the widely divergent state laws being debated or enacted in the country in the wake of Dobbs. Part Two discusses potential constitutional challenges to the extraterritorial application of these abortion statutes. If statutes criminalize or impose civil liability on the actual pregnant person seeking the abortion, such statutes might be challenged under the Privileges and Immunities Clause of Article IV specifically, or as a violation of the constitutional right to travel more generally. Alternatively, if statutes seek to impose criminal or civil penalties on out-of-state healthcare providers or other actors, those statutes may be vulnerable to a challenge under theCommerce Clause. Part Three turns to potential federal preemption of state anti-abortion laws under the Food, Drug, and Cosmetics Act or the Emergency Medical Treatment and Active Labor Act. Part Four addresses the question of whether states can impose civil liability on out-of-state acts or actors—even beyond the right to travel and Commerce Clause concerns—focusing on the classic conflicts-of-law doctrines of jurisdiction, choice of law, and judgment recognition. Finally, Part Five considers the activities of private actors as sources of regulatory authority that create conflicts questions. Here, we discuss the degree to which a state can prevent employers from covering abortion-related expenses as part of their health insurance plans, the privacy concerns that arise when private actors collect data that might be used in criminal prosecutions or civil suits regarding abortions, and the possibility that private religious groups might invoke the First Amendment to claim exemptions from state anti-abortion laws

    Compensation Under the Microscope: Virginia

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    Enacted in 2004, the Virginia wrongful conviction compensation statute is unique in the United States. The decision to award compensation rests not with a court or an administrative agency, but with the state legislature. Unlike other compensation statutes that create an entitlement to compensation when a person is found eligible, the Virginia statute explicitly says that “[t]he payment and receipt of any compensation for wrongful incarceration shall be contingent upon the General Assembly appropriating funds for that purpose. This article shall not 2 provide an entitlement to compensation for persons wrongfully incarcerated or require the General Assembly to appropriate funds for the payment of such compensation.” Va. Code § 8.01-195.10(A)

    When the Math Matters: Use of P-Values in Pharmaceutical Litigation

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    This article explains the use of p-values as part of statistical analyses to support several types of pharmaceutical litigation, focusing on how lawyers can best present relevant studies to benefit their clients “when the math matters” and indeed critically affects the outcome of the dispute. The article begins with a conceptual discussion of p-values as utilized in the scientific community and continues by describing the substantial concerns many scientists have voiced about the use of p-values to show much of anything. The article then explains use by lawyers and judges of p-values in litigation, particularly three aspects of pharmaceutical litigation, where concerns about p-values sometimes are identified, but the discussion is typically relatively superficial and the broader concerns of the scientific community about p-values are neither generally understood nor discussed. In this section, the article dives deeper into three exemplar cases, showing how p-values were used and perhaps mis-used in those contexts. The article concludes by discussing principles of scientific communication that may help lawyers to break down the discussion and better explain “the math” in similar cases

    In Memoriam Thomas Buergenthal (1934-2023)

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    Thomas Buergenthal—a Holocaust survivor; a ground-breaking scholar, teacher, and mentor; and a practitioner who scaled the heights of his profession—died at his home in Miami on May 29, 2023. This In Memoriam briefly notes his remarkable life and professional accomplishments, including his youth spent in Nazi concentration camps and his service as a Judge of the International Court of Justice. When reflecting on his life-long pursuit of robust and effective human rights, Judge Buergenthal understood that, despite great progress in the field of human rights, much remained to be done, and that sadly many atrocities continued across the globe. Yet he urged others to turn away from cynicism. “The task ahead is to strengthen these tools, not to despair, and to never believe that mankind is incapable of creating a world in which our grandchildren and their descendants can live in peace and enjoy the human rights that were denied to so many of my generation.” Through his extraordinary accomplishments, Tom Buergenthal played his part in creating such a world

    The Remains of the Establishment Clause

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    The very first words of the Bill of Rights mark religion as constitutionally distinctive. Congress may not enact laws respecting an establishment of religion – in particular, acts of worship, religious instruction, or proselytizing. A pluralist, liberal democracy requires separation of civil government from these distinctively religious activities. From the middle of the 20 th Century until Justice O’Connor’s retirement in 2005, the Supreme Court energetically animated that principle of distinctiveness. In a series of decisions in the last decade, however, the Court has upended its longstanding approach to what is distinctive about religion in constitutional law. Notably, this process of change has unfolded with little engagement with, and occasional disdain for, the history and reasoning that underlay once-settled principles. The Court’s aggressive undoing of Establishment Clause concerns has been accomplished in large part by dramatically expanding Free Exercise interests. In this paper, we analyze these developments. Part I provides a conceptual overview of the idea that certain aspects of religion are constitutionally distinctive. Part II tracks the three major areas of Establishment Clause adjudication in which distinctiveness norms have withered. Part II.A. focuses on government financial support of religious entities, with particular emphasis on the recent trilogy, concluding in Carson v. Makin, about state discretion in such matters. Part II.B. turns to the collapsing law about state sponsorship of religious exercises and displays. Part II.C. confronts the stunning decision in Kennedy v. Bremerton School District, which threatens a 60-year-old enterprise of prohibiting official prayer in the public schools. In all three contexts, nothing is left except concerns about coercion and non- discrimination, neither of which depends on the Establishment Clause. Part III turns briefly to the newly declared supremacy of the Free Exercise Clause. We show how a Free Exercise-based conception of religious distinctiveness generates significant advantages for religious individuals (including staff in public schools) and institutions while simultaneously insulating them from state control. Government, once subject to a distinctive limitation on promoting or sponsoring religion, now must afford religion distinctive privileges. 1 Ira C. Lupu is the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University

    Leveraging the Federal Government’s Buying Power to Mitigate Climate Change

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    As global temperatures continue to rise, this brief article focuses on the evolution of sustainable public procurement (primarily in the United States federal or central government marketplace). Among other things, the article introduces expanding efforts by the National Contract Management Association (NCMA) and its community of practice (COP) to raise awareness of the procurement profession\u27s and community\u27s role in adapting to and mitigating climate change, support knowledge sharing about existing work in this area, provide resources and training to contracting professionals, and integrate sustainability into contracting professional standards. Ultimately, what procurement officials buy, how they buy, and who they buy from can drive large shifts in the behavior of industry and consumers. The article asserts that the federal acquisition community needs to rapidly learn, embrace, and champion sustainable procurement practices. At the same time, nothing in the Federal Acquisition Regulation (FAR) prohibits the acquisition community from learning, thinking about, experimenting with, and sharing experiences; nor does it impede acquisition professionals from integrating sustainability considerations into requirements generation, acquisition planning, solicitation development, incentive design, contract negotiation, and contract management

    The Unintended Consequences of International Trade Law Adjudicatory Exceptionalism

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    On account of the fact that first impression judicial review over federal questions of international trade law is committed to the U.S. Court of International Trade, a national Article III court with appellate review vesting with the U.S. Court of Appeals for the Federal Circuit, advocates often litigate their cases in a vacuum from other areas of law. This essay argues that such an approach is unsupported by the statutory framework of the U.S. Court of International Trade, which was meant to operate under traditional Article III administrative law review norms. This essay also argues that advocates would strategically benefit from connecting international trade law advocacy to broader administrative law and statutory interpretation law for the benefit of appellate review before the U.S. Supreme Court

    Carceral Control: A Nationwide Survey of Criminal Court Supervision Rules

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    The day-to-day operation of criminal court supervision—including probation, parole, and electronic ankle monitoring—is understudied and undertheorized. To better understand the mechanics of these systems, this study comprehensively analyzes the rules governing people on criminal court supervision in the United States. Drawing on the analysis of 187 public records from all fifty states, this study documents how criminal court supervision functions and impacts daily life. In particular, this study examines the various ways that supervision rules limit or restrict privacy, bodily autonomy, liberty, dignity, speech, and financial independence. This study also explores the nature and prevalence of supervision rules across the United States. Ultimately, the analysis of the rules offers empirical evidence that court supervision imposes significant restraints on people’s ability to thrive and, in doing so, risks legitimating the subordination of historically marginalized groups

    International Procurement Developments in 2022: New Perspectives in Global Procurement

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    This piece reviews the past year’s developments in international public procurement in several parts, including: (I) the United Kingdom’s first steps in developing a post-Brexit procurement law (in a part prepared by Michael Bowsher KC, visiting professor at King’s College, London and a barrister at Monckton Chambers); (II) potentially protectionist measures by the European Union (by Pascal Friton, partner at the BLOMSTEIN law firm in Berlin) through the International Procurement Instrument (IPI), the Foreign Subsidies Regulation (FSR), application of the General Data Protection Regulation (GDPR), and measures being taken in response to Russia’s invasion of Ukraine, such as trade sanctions and Germany’s Bundeswehr Procurement Acceleration Act; (III) important developments in Canada’s approach to defense procurement and enforcing international trade agreements involving procurement (by Paul Lalonde, partner in Dentons’ Toronto offices); (IV) very significant changes in Sweden’s public procurement laws triggered by the Russian invasion of Ukraine (by Andrea Sundstrand, professor at Stockholm University); and, (V) a proposed rule from the Biden administration that marks a key global development in environmental sustainability (by Christopher Yukins, of George Washington University Law School’s Government Procurement Law Program)

    Compensation Under the Microscope: Michigan

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    Michigan’s state compensation statute took effect in 2017. It has been in effect long enough to allow pre-statute exonerees to file and resolve state claims. But, the statute is not so old such that prior processes for resolving claims skew the statistics. There was, however, initial uncertainty over the proper statute of limitations by which a claim must be filed in the Michigan Court of Claims. The Court of Claims’ interpretation led to the dismissal of about ten claims. Those were appealed to the Michigan Court of Appeals. Meanwhile, the legislature amended the statute retroactively to impose a more generous statute of limitations. This glitch certainly lengthened the time it took to resolve some state compensation claims


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