Digital Commons Network^™

The Man Behind The Torture, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but we know less about the choices people make about copyright on a daily basis, especially when they are not at work. Thus, this article examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Fans justify their unauthorized derivative works as legitimate, no matter what formal copyright law says, with …

The Grand Inquisitors, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Defense Of Torture, David Luban

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …

Terrorism And Trial By Jury: The Vices And Virtues Of British And American Criminal Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

British tradition and the American Constitution guarantee trial by jury for serious crime. But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways. First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence. Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, …

What’S International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces an immediate and continuous threat of terrorist attack using weapons of mass destruction, including nuclear weapons. The intelligence function and national security law, including international law--or more accurately transnational law--are central to addressing this threat. Indeed, international law is more relevant today in addressing this threat than it was before September 11. Part II of this article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Part …

Reforming The Taxation Of Deferred Compensation, Ethan Yale, Gregg D. Polsky

Georgetown Law Faculty Publications and Other Works

Executive pay is currently a topic of significant interest for policymakers, academics, and the popular press. On August 14, 2006, in reaction to widespread press reports and academic criticism of extravagant executive perquisites, the SEC proposed new regulations designed to change fundamentally the manner in which executive compensation is reported to shareholders. Despite all of this attention, one significant aspect of executive deferred compensation has gone virtually unnoticed - the federal tax rules governing this form of compensation are fundamentally flawed and must be extensively overhauled. These rules are flawed because they often create a significant incentive for companies and …

Three Pictures Of Contract: Duty, Power And Compound Rule, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A fundamental divide among theories of contract law is between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act, in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law puts duties on persons entering into agreements for consideration whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing -- a question that should lie at …

Creativity And Culture In Copyright Theory, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. When asked to discuss the source of their inspiration, individual artists describe a process that is intrinsically ineffable. Rights theorists of all varieties have generally subscribed to this understanding, describing creativity in terms of an individual liberty whose form remains largely unspecified. Economic theorists of copyright work from the opposite end of the creative process, seeking to divine the optimal rules for promoting creativity by measuring its …

It Depends On What The Meaning Of "False" Is: Falsity And Misleadingness In Commercial Speech Doctrine, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

While scholarship regarding the Supreme Court's noncommercial speech doctrine has often focused on the level of protection for truthful, non-misleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First …

Affirmative Inaction, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Perhaps the most exasperating aspect of racial discrimination in the United States is the self-righteous manner in which it is practiced. After a history of facilitating white exploitation of minority interests, the Supreme Court intimated in Grutter v. Bollinger that time was running out for racial minorities to take advantage of the opportunities for equality that the culture has offered in the form of affirmative action. Justice O'Connor's majority opinion seemed to say that in another twenty-five years, the Court would cease to tolerate such special favors for racial minorities, thereby leaving minorities only a limited amount of time remaining …

National Security And Environmental Laws: A Clear And Present Danger?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Without question, life in the United States has changed significantly since September 11, 2001. The attacks launched from within the United States in broad daylight against non-military targets and innocent civilians, followed by the intentional dispersal of the biological agent anthrax, ushered in an era of uncertainty and fear in this country unlike any in recent memory. The visible manifestations of this fear are still with us--concrete barriers and the closing of public spaces around public buildings, heightened security at airports and train stations subjecting people to invasive searches of their persons and belongings, the sudden, seemingly random appearance of …

A Theory And Definition Of Public Health Law, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

I offer a brief excerpt from my book, Public Health Law: Power, Duty, Restraint. My definition of public health law follows, and the remainder of this excerpt offers a justification as well as an expansion of the ideas presented: Public health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain …

Howard T. Markey, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Chief Judge, jet test pilot and Air Force General, lead partner in a highly-respected law firm, law teacher, law dean and sought-after lecturer, Howard T. Markey packed into a single life four distinguished careers, any one of which would merit biographical attention. His early years, however, did not show the promise of what later occurred - or perhaps it did.

Public-Private Health Law: Multiple Directions In Public Health, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

No public law is more public than public health law. Its defining subject is the use of state power to control and prevent death and disease. Its primary institutions are a cluster of state actors, the governmental agencies that comprise the American public health "system.,, The system grew out of the eighteenth century boards of health that produced the beginnings of administrative law. Public health law is grounded on statutory provisions that authorize various forms of state action and on judicial decisions that resolve constitutional challenges to those actions.

A Republic Of The Mind: Cognitive Biases, Fiscal Federalism, And Section 164 Of The Tax Code, Brian Galle

Georgetown Law Faculty Publications and Other Works

In its efforts to guide money to the states, our federal government annually passes up more than $75 billion in potential revenue under a single provision of the Tax Code. That provision, section 164 of the Code, allows itemizing taxpayers to deduct the cost of the state and local income, property, and (to a limited extent) sales taxes they paid during the tax year. The eye-popping size of that number makes section 164 a perennial issue in tax policy circles, and as one of the deductions omitted from the Alternative Minimum Tax's (AMT) parallel tax universe, the section is also …

The Federal “Claim” In The District Courts: Osborn, Verlinden, And Protective Jurisdiction, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In the title of his influential article, “The Federal ‘Question’ in the District Courts,” Professor Paul Mishkin reminded us that the phrase “federal question” is a misnomer as a description of the “arising under” jurisdiction of the district courts. The purpose of the “arising under” jurisdiction of the district courts is not solely, or even primarily, to resolve disputed questions of federal law, but to provide a hospitable forum for the vindication of federal rights. Such rights can be frustrated by an inhospitable forum not just through the misinterpretation of federal law, but through misinterpretation of state law or through …

Contracting For Cooperation In Recovery, Gregory Klass

Georgetown Law Faculty Publications and Other Works

There is a longstanding debate about whether courts should enforce contract terms purporting to limit the parties' liability for fraud. Less often noticed is that many contracts are designed to incorporate fraud liability, by requiring one party to make representations about her performance that, if false, can satisfy the elements of deceit. Such contractual representations are best understood as members of a broader, hitherto underappreciated category of contract terms: duties designed to increase the other party's chances of recovering for breach. Examples include the duty to keep records, to share information about performance, to permit audits, or not to hide …

Do Charter Schools Threaten Public Education? Emerging Evidence From Fifteen Years Of A Quasi-Market For Schooling, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

Supporters of public education have long feared that charter schools will threaten the public system, both by 1) creaming off the most advantaged students and 2) undermining political support for the public system. These fears have not been borne out. Blacks are disproportionately in charters, whites are disproportionately in traditional public schools, and Hispanics are fairly evenly distributed between the two. Looking at class measures, poor students are distributed fairly equally between the two types of schools. And turning to other measures of privilege, the evidence does not point strongly in either direction. My conclusions are not without qualification. The …

On Leaving Corporate Executives "Naked, Homeless And Without Wheels": Corporate Fraud, Equitable Remedies, And The Debate Over Entity Versus Individual Liability, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

There is a lively debate about the relative merits of entity versus individual liability in cases involving securities fraud. After reviewing this debate in the context of both private securities litigation and SEC enforcement, this paper considers whether the legal tools available against individual executives are adequate, and if not, what changes might be made. The main focus is on equitable remedies, especially rescission and restitution, under both state and federal law. As to the former, Vice Chancellor Strine’s opinion in In re Healthsouth offers an interesting template, although there are limits on the usefulness of derivative suits to police …

Process Theory, Majoritarianism, And The Original Understanding, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

In Radicals in Robes, Cass Sunstein posits that there are four primary approaches to constitutional interpretation: perfectionism, majoritarianism, minimalism, and fundamentalism.' The purpose of his eloquent and compelling book is twofold: Sunstein argues for minimalism, an approach that he contends makes most sense for America today; and with even greater force, Sunstein argues against fundamentalism, which he finds "wrong, dangerous, radical, and occasionally hypocritical."' The "Radicals in Robes" who are the targets of Sunstein's book are judges who embrace fundamentalism, which, in his view, embodies "the views of the extreme wing of [the] Republican Party."'

In Securing Constitutional Democracy: The …

Private Standards, Public Governance: A New Look At The Financial Accounting Standards Board, William W. Bratton

Georgetown Law Faculty Publications and Other Works

The Financial Accounting Standards Board (the "FASB") presents a puzzle: How has this private standard setter managed simultaneously (1) to remain independent, (2) to achieve institutional stability and legitimacy, and (3) to operate in a politicized context in the teeth of opposition from its own constituents? This Article looks to governance design to account for this institutional success. The FASB's founders made a strategic choice to create a regulatory agency that sought independence rather than political responsiveness. The FASB also set out a coherent theory of accounting, the "Conceptual Framework," to contain and direct its decisions. The Conceptual Framework contributed …

Due Process Land Use Claims After Lingle, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Supreme Court held in Lingle v. Chevron U.S.A. Inc. that challenges to the validity of land use regulations for failing to advance governmental interests must be brought under the Due Process Clause, rather than the Takings Clause, and must be evaluated under a deferential standard. This Article analyzes and evaluates the probable course of such judicial review, and concludes that federal courts will resist due process review of land use decisions for good reasons but not always with an adequate doctrinal explanation. However, state courts can use due process review to provide state level supervision of local land use …

Against Citizenship As A Predicate For Basic Rights, David Cole

Georgetown Law Faculty Publications and Other Works

The subject of my remarks will be citizenship, or more precisely the lack thereof, as a wedge issue on matters of rights, the rule of law, and the war on terror. I will argue that we ought to be careful about relying on citizenship as a rallying call for rights and protections precisely because the distinction between citizenship and its lack has proven to be such a tempting avenue for illegitimate trade-offs between liberty and security.

The Rise And Fall Of School Vouchers: A Story Of Religion, Race, And Politics, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

This Article examines why school vouchers have failed to garner the support that so many assumed would follow the Court's decision in Zelman. The explanation, I suggest, concerns religion, race, and politics. The original rationale for vouchers was what I call the "values claim"-vouchers protected the right of parents to send their child to a school that reinforced their values. Originally promoted by Catholics, the values claim was adopted by evangelical Christians concerned about the secularization of public schools after the 1960s. Although the values claim was central for most of the history of the voucher movement, in the decade …

Network Stories, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In 1962, Rachel Carson named the natural environment. Scientists were beginning to understand the complex web of ecological cause and effect; naming that web gave it independent existence and invested that existence with political meaning. In 1996, James Boyle named the cultural environment. Boyle’s act of naming was intended to jumpstart a political movement by appropriating the complex web of political meaning centered on the interdependency of environmental resources.

But naming, although important, is only a beginning. The example of the natural environment shows us that to build from a name to a movement requires two things. First, you have …

Cyberspace As/And Space, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The appropriate role of place- and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested. This essay seeks to provoke critical reflection on the implications of place- and space-based theories of cyberspace for the ongoing production of networked space more generally. It argues, first, that adherents of the cyberspace metaphor have been insufficiently sensitive to the ways in which theories of cyberspace as space themselves function as acts of social construction. Specifically, the leading theories all have deployed the metaphoric construct of cyberspace to situate cyberspace, explicitly or implicitly, as separate space. This denies all …

Odious, Not Debt, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This article argues that the doctrine of Odious Debt, which has enjoyed a revival since the U.S. invasion of Iraq in 2003, frames the problem of odious debt in a way that excludes most of the problematic obligations incurred by twentieth-century despots. Advocacy and academic literature traditionally describe the odious debt problem as one of government contracts with private creditors. Most theories of sovereign debt key off the same relationship. But in the latest crop of cases, including Iraq, Liberia, and Nigeria, private creditors represent a small fraction of the old regime's debts. Most of the creditors are other governments …

Wal-Mart Bank In Mexico: Money To The Masses And The Home-Host Hole, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

In November 2006 Wal-Mart's Mexican subsidiary received approval to open a bank. The application faced little opposition in Mexico, unlike the company's failed effort to start a bank in the United States. This was partly because in Mexico, Wal-Mart's entry was generally regarded as increasing competition in a historically concentrated banking sector. With over three-quarters of all Mexicans unbanked, the authorities also looked to Wal-Mart to reach the underserved. Along with the promise, Wal-Mart's entry presents a transnational regulatory dilemma with implications beyond Wal-Mart and Mexico. Because it is Wal-Mart's only banking venture, the new institution will have its Mexican …