Digital Commons Network^™

Cutter And The Preferred Position Of The Free Exercise Clause, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s unanimous decision in Cutter v. Wilkinson (2005) allowed Congress to give religious exercise a status superior to that given to free speech. In upholding RLUIPA, a statute protecting inmate religious freedom, the Court explicitly held that statutes can allow prisoners to “assemble for worship, but not for political rallies.” Religion, which lost in Smith (1990) the traditional “preferred position” courts have accorded First Amendment rights, can now regain that position through legislation notwithstanding the Establishment Clause. Indeed, religion has not just regained parity with free speech, it now receives greater protection in the prison setting. This striking …

Reviving The Nixon Doctrine: Nsa Spying, The Commander-In-Chief, And Excutive Power In The War On Terror, David Cole

Georgetown Law Faculty Publications and Other Works

When the President does it, that means that it is not illegal. So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement in the 1970s. For thirty years Nixon's defense has stood as the apogee of presidential arrogance. But of course Nixon was proved wrong. The wiretapping plan was shelved when FBI Director J. Edgar Hoover, of all people, objected to it. Nixon's approval of the program was listed in the articles of impeachment, and ultimately he was forced to resign. Nixon learned the hard way that presidents …

Risky Business, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

This article is part of an exchange including Anthony Alfieri and William Simon in the Georgetown Law Journal on the implications of law firms' increasing reliance on the concept of risk management as the focus of efforts to ensure ethical conduct by lawyers. A risk management program involves the adoption of various policies and procedures designed to minimize conduct that may lead to individual and firm liability. Conflicts checking procedures, standard terms in engagement letters, and the requirement of a second signature by a disinterested partner on legal opinions are but a few of such measures.

On one hand, the …

Edmund Burke, John Whyte And Themes In Canadian Constitutional Culture, David Schneiderman

Georgetown Law Faculty Publications and Other Works

John Whyte, the author observes, is committed to the idea that there are moral foundations to Canada's constitutional order and that these foundations are derived from liberal principles. This paper compares Whyte's liberal and organicist constitutionalism to that of the eighteenth century British political thinker, Edmund Burke. Three themes are predominant in Whyte's work: those of liberty and security, unity and diversity, and constitutional change. Drawing out these themes in both Whyte's and Burke's constitutional thought, the author argues that Whyte has a sound historical basis for deriving Canadian constitutional practices from liberal principles ordinarily associated with Burke. The author …

Defending The Unpopular Down-Under, Abbe Smith

Georgetown Law Faculty Publications and Other Works

The ethics of criminal defence lawyers and others who represent 'unpopular clients' is a largely unexplored area of legal scholarship in Australia. This article seeks to examine, from a comparative perspective, the motivations and ethical practices of these lawyers. Using interviews with Australian lawyers who represent the criminally accused, prisoners and asylum-seekers, as well as relevant ethical rules and commentary, the article identifies why lawyers undertake unpopular cases and, ultimately, what sustains them. Contrasting Australian legal practice with that in the US, the article discusses the sometimes competing professional obligations to court and client, truth and advocacy, public and profession. …

Popular Constitutionalism As Political Law, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Article addresses some of the critical reviews of ‘The People Themselves’, focusing on how they respond to the proposition, which I believe to be correct and made in ‘The People Themselves’, that constitutional law is a distinctive or special kind of law. I call that kind of law political law. Both parts of the formulation are equally important. Constitutional law is law, what is sometimes described as "hard" law. As law, it sometimes induces decision-makers to make decisions that are inconsistent with their "pure" preferences, that is, those they would hold in the absence of law. My aim is …

Constitutional Culture Or Ordinary Politics: A Reply To Reva Siegel, Robin West

Georgetown Law Faculty Publications and Other Works

Reva Siegel's lecture, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA,’ explores the interaction between the courts and social movements in creating constitutional meaning. In the primary part of this response I focus my comments on Siegel's three major contributions: First, the historical explanation of the source of the Court's authority in the development of the so-called de facto ERA; second, the articulation of a general, jurisprudential thesis regarding social contestation as a source of constitutional authority apart from text, history, and principle; and third, the quasi-sociological descriptive account of the form social …

Who Is The Child Left Behind? The Racial Meaning Of The New School Reform, Charles R. Lawrence Iii

Georgetown Law Faculty Publications and Other Works

Segregated schools achieve their racist purpose by building a wall between poor black and brown children and those of us with privilege, influence, and power. It does not matter that this wall is not built pursuant to the mandate of law or that it is created by the cumulative effect of our private choices. It is segregation nonetheless and it encourages us to hoard our wealth on one side of the wall while children on the other side are left with little. The genius of segregation as a tool of oppression is in the signal it sends to the oppressor …

Why Civil Rights Lawyers Should Study Tax, Stephen B. Cohen, Laura Sager

Georgetown Law Faculty Publications and Other Works

This Article discusses the intersection of civil rights law and income taxation in the three areas listed above: damages for unlawful discrimination, the forgiveness of debt by a predatory lender, and tax-exempt status for private educational and religious institutions. Our purpose is not to attempt an exhaustive examination of the issues in each area but to convey a sense of the range of tax problems that civil rights lawyers may need to confront.

Sosa V. Alvarez-Machain And Human Rights Claims Against Corporations Under The Alien Tort Statute, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Contrary to the claims of some observers, the Supreme Court's decision in Sosa v. Alvarez-Machain does not sound the death knell for the use of the Alien Tort Statute to maintain human rights claims against private corporations in the U.S. courts. The decision clarifies the nature of claims under the Alien Tort Statue to some extent, and places some limits on the theories available in actions against private corporations, but for the most part such suits remain as viable after Sosa as they were before. That is not to say, however, that victims of corporate human rights violations in developing …

Copyright, Commodification, And Culture: Locating The Public Domain, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The relationship between increased commodification and the public domain in copyright law is the subject of considerable controversy, both political and theoretical. The paper argues that beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a public domain is. When considered in broader historical context, the term public domain has a specific set of denotative and connotative meanings that constitute the artistic, intellectual, and informational public domain as a geographically separate place, portions of which are presumptively eligible for privatization. This idea meshes well with the current push toward commodification in copyright. The …

Internal Separation Of Powers: Checking Today's Most Dangerous Branch From Within, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions.

A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial …

Beyond Unconscionability: Class Action Waivers And Mandatory Arbitration Agreements, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

We live in an age of convenience. From financial transactions to electronic correspondence, we frequently deal with large corporations that provide services in our daily lives. One of the prices we pay for the convenience of these transactions, however, is that our commercial relationships increasingly are based on standard form contracts written by large corporations. While these standard form contracts are necessary to an economically efficient society, the growing use of mandatory arbitration provisions and clauses that prohibit class actions in these contracts raises the spectre of corporate abuse.

Who's Afraid Of Unenumerated Rights?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, the author examines why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, he contends that underlying this …

"Just Like A Tree Planted By The Waters, I Shall Not Be Moved": Charles Ogletree, Jr., And The Plain Virtues Of Lawyering For Racial Equality, Emma Coleman Jordan

Georgetown Law Faculty Publications and Other Works

It was a moment of unbelievable risk, a precipice of career suicide, a decision that would challenge the careful planning of more timid lawyers. His wife urged caution; a Harvard colleague explored back channels with the Senate Judiciary Committee to telegraph warning to him of unseen torpedoes that might lie in his path. Even he hesitated in the face of the immediate demands of the substantial scholarly writing required to earn tenure at Harvard. Yet, at the end of the day of October 10, 1991, Charles Ogletree, Jr., known as "Tree" to his friends, chose to step into a role …

Constitutions As "Living Trees"? Comparative Constitutional Law And Interpretive Metaphors, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

Part I below explores the interpretive approaches of three other high national courts that have engaged in constitutional review over a long period of time, identifying two respects in which they may bear on this debate. First, their jurisprudence relies on interpretive approaches that depend on multiple sources and forms of argument-what some call an "eclectic" method, and others might call common law constitutionalism. Second, the jurisprudence of other significant national courts acknowledges the possibility that interpretive understandings will change. Indeed, in those countries with continuity of rights-protecting constitutional regimes and with high courts vested with the power of judicial …

New Paradigms For The Jus Ad Bellum?, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

I am delighted to be here today to honor Ed Cummings, a wonderful colleague and a source of great wisdom for so many of us. I first worked with Ed in the Legal Adviser's Office in the late 1980s. More than fifteen years later, Ed is still the person I turn to for insight on the most difficult issues in the law of armed conflict. Most memorably of all, while serving at the National Security Council in 1999, I worked closely with Ed in achieving an important treaty milestone: the Procotol restricting the use of child soldiers in armed conflict …

Twenty-First Century Equal Protection: Making Law In An Interregnum, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

During her remarkable career on the Supreme Court, Justice Sandra Day O'Connor articulated principles, in both concurrence and dissent, which moved to the doctrinal core of multiple areas of jurisprudence. Perhaps, just perhaps, Justice O'Connor has done it again. In Lawrence v. Texas, although the Court's majority decided the case on substantive due process grounds, O'Connor concurred relying solely on the Equal Protection Clause. Because future litigation on sexuality and gender issues is more likely to turn on issues of equality (or expression) than on issues of privacy, her concurrence may ultimately achieve the influence of many of her past …

New Rules For Promissory Fraud, Gregory Klass, Ian Ayres

Georgetown Law Faculty Publications and Other Works

This article summarizes the authors’ recommended reforms to the law of promissory fraud. These recommendations are presented as a Draft Prestatement of the Law of Insincere Promising. The basic propositions of the Prestatement are taken, with some modification, from the authors’ book, Insincere Promises: The Law of Misrepresented Intent (2005). This article adds extensive comments, in the style of the Restatements, and a prose introduction identifying three reforms we deem most important. First, courts should drop their insistence that every promise represents an intent to perform, and treat that representation instead as a default. Second, courts faced with claims of …

Reflections On Scienter (And The Securities Fraud Case Against Martha Stewart That Never Happened), Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

This paper considers what research in cognitive psychology and behavioral economics has to say about one of the basic "state of mind" constructs in the law of fraud: scienter. It takes a clinical approach, examining the securities fraud case that never happened against Martha Stewart. In granting a judgment of acquittal in Stewart's favor on the securities fraud charge, the court seemingly misunderstood the law of scienter, which turns on awareness rather than purpose. But that simply provides an opportunity to think about what awareness means in the context of financial transactions. From publicly available sources, interesting inferences can be …

Internal Controls After Sarbanes-Oxley: Revisiting Corporate Law's "Duty Of Care As Responsibility For Systems", Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Revisiting section 3.4.2 of Clark's Corporate Law ('Duty of Care as Responsibility for Systems") reminds us, however, that the internal controls story actually goes back many decades, and that many of the strategic issues that are at the heart of section 404 have long been contentious. My Article will briefly update Clark's account through the late 1980s and 1990s before returning to Sarbanes-Oxley and rulemaking thereunder by the SEC and the newly created Public Company Accounting Oversight Board ("PCAOB"). My main point builds on one of Clark's but digs deeper. Internal controls requirements, whether federal or state, are incoherent unless …

The Story Of Upjohn Co. V. United States: One Man's Journey To Extend Lawyer-Client Confidentiality, And The Social Forces That Affected It, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The attorney-client privilege protects information a client provides an attorney in confidence for the purpose of securing legal advice. But suppose the client is not a person but a corporation and can only speak through its agents and employees. What then are the contours of the privilege? If the corporation's attorney asks an employee for information relating to pending litigation or other legal matters, is the conversation privileged? Some courts said that no communications to a corporate attorney were privileged unless they came from members of the corporate control group, loosely those people who had authority to direct the attorney's …