Digital Commons Network^™

Asymmetric Empirical Similarity, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

Introduction To Philosophical Foundations Of Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This Introduction to Philosophical Foundations of Contract Law (Gregory Klass, George Letsas & Prince Saprai eds., Oxford University Press, forthcoming) describes the field of contract theory and locates the essays in the volume within that field. The volume includes chapters from Aditi Bagchi, Randy Barnett, Lisa Bernstein, Mindy Chen-Wishart, Charles Fried, Avery Katz, Dori Kimel, Gregory Klass, George Letsas and Prince Saprai, Daniel Markovits, Liam Murphy, David Owens, J.E. Penner, Margaret Jane Radin, Joseph Raz, Stephen Smith, and Charlie Webb.

Legal And Ethical Responsibilities Following Brain Death: The Mcmath And Muñoz Cases, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

What are the legal and ethical implications of continuing to treat a brain dead patient? And may a hospital refuse to provide such treatment? These ethical and legal problems are raised in two recent cases. In the first Marlise Muñoz, a pregnant woman declared brain dead, was kept on life support against her family’s wishes due to the treating hospital’s interpretation of a Texas fetal protection law. In the other a hospital refused to treat Jahi McMath, a brain dead girl, despite her family's entreaties. The cases, at first, appear similar because in each case the hospital was refusing to …

What Makes A Homepage Effective – Aals 2014 Presentation, Leslie R. Steinberg, Steven Barnes, Roger Skalbeck

Georgetown Law Faculty Publications and Other Works

As the approach to website development is constantly evolving to accommodate the latest technology, what are the best practices in law school home page design? Speakers will include Roger Skalbeck, author of the annual "Top 10 Law School Home Pages" ranking, who will explain the methodology, analysis and trends related to the study, and Steven Barnes, who will share the award-winning approach used at Penn Law to earn accolades from key constituencies, tie for #1 in “The Top 10 Home Pages” and earn a 2013 Webby People’s Voice Award.

Bulk Metadata Collection: Statutory And Constitutional Considerations, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of …

Inside The Blackwall Box: Explaining U.S. Marine Salvage Awards, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

Under U.S. maritime law, a salvor of imperiled maritime property on navigable waters is entitled to a monetary award from the owner. When the salvage service is rendered voluntarily in the absence of a contract, the court determines the salvage award according to six factors enumerated by the Supreme Court in The Blackwall, 77 U.S. 1 (1869). The law, however, does not specify a precise formula or rule for calculating awards on the basis of the Blackwall factors. How do courts turn their findings on the Blackwall factors into salvage awards? This article addresses this question by examining the …

Humanitarian Intervention: Evolving Norms, Fragmenting Consensus (Remarks), Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Traditionally, the evolution of customary international law was understood as a gradual process: in some idealized model, we might see first a few states, and then a few more, implicitly agreeing to follow a practice, and then we would gradually begin to see additional states doing the same thing. We would also gradually accumulate evidence that these various states are acting in such a way because they consider themselves legally bound to do so. Then, over time, we’ll see more and more states following suit both in word and deed, until at some point we can say with a great …

Overrides: The Super-Study, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters …

Virtual Water, Water Scarcity, And International Trade Law, Edith Brown Weiss, Lydia Slobodian

Georgetown Law Faculty Publications and Other Works

We are facing a fresh water crisis during this century. In less than two decades, by 2030, the requirements for fresh water are expected to exceed the currently available and accessible fresh water supplies by 40%. Many countries are expected to be water stressed later in this century; some areas of the world already are. Some people may even lack water to meet basic human needs, such as drinking, washing, and sanitation. In rural areas in certain regions, people may lack water to grow good food crops, even for their own consumption. This has major implications for the welfare of …

Uncovering The Reformation Roots Of American Marriage And Divorce Law, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

In 1639, Massachusetts Bay colonists pressed Governor John Winthrop to adopt a “body of laws” that would restrict the considerable power that “rested in the discretion of magistrates.” Having survived both the transatlantic voyage and the rigors of the new world in their quest to establish a religious utopia away from the demands of church and state in England, the colonists were understandably loath to give their local officials unchecked power. Winthrop offered several reasons why the leaders of the colony opposed the request: the colonists did not yet have enough experience to develop laws appropriate for their new circumstances, …

Pandemic Disease, Biological Weapons, And War, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Over the past two decades, concern about the threat posed by biological weapons has grown. Biowarfare is not new. But prior to the recent trend, the threat largely centered on state use of such weapons. What changed with the end of the Cold War was the growing apprehension that materials and knowledge would proliferate beyond industrialized states’ control, and that “rogue states” or nonstate actors would acquire and use biological weapons. Accordingly, in 1993 senators Samuel Nunn, Richard Lugar, and Pete Dominici expanded the Cooperative Threat Reduction Program to assist the former Soviet republics in securing biological agents and weapons …

“I’M A Lawyer, Not An Ethnographer, Jim”: Textual Poachers And Fair Use, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

Fisa Reform, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Congress and the Executive Branch are poised to take up the issue of FISA reform in 2014. What has been missing from the discussion is a comprehensive view of ways in which reform could be given effect—i.e., a taxonomy of potential options. This article seeks to fill the gap. The aim is to deepen the conversation about abeyant approaches to foreign intelligence gathering, to allow fuller discussion of what a comprehensive package could contain, and to place initiatives that are currently under consideration within a broader, over-arching framework. The article begins by considering the legal underpinnings and challenges to the …

Future Oversight Of Recombinant Dna Research: Recommendations Of An Institute Of Medicine Committee, Lawrence O. Gostin, Bruce M. Altevogt, Andrew M. Pope

Georgetown Law Faculty Publications and Other Works

The National Institutes of Health (NIH) established the Recombinant DNA Advisory Committee (RAC) in 1974 in response to public concerns about the safety of manipulating genetic material through recombinant DNA. The accumulation of 40 years of experience with gene transfer research has led to a better understanding of the risks. Yet, as gene transfer research has matured, the complexity of the overall regulatory environment has remained. Gene transfer research continues to be subjected to multiple layers of review: the Food and Drug Administration (FDA), institutional review boards, institutional biosafety committees, and the RAC. It is within the context of overlapping …

Civil Rights 3.0, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

It is now commonplace to hear the LGBT rights movement being described as the last, or the next, or today’s, pre-eminent civil rights issue. This chapter will explore what that means from several perspectives: What does the label tell us about the civil rights paradigm itself? If the achievement of marriage equality is the great civil rights achievement of this generation, what does that suggest about a future for equality more generally? How have new forms of, and technologies for, movement building affected the idea and practice of civil rights? Does the civil rights paradigm have a future? I focus …

Artificial Meaning, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry into the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux …

Clinical Collaborations: Going Global To Advance Social Entrepreneurship, Deborah Burand, Susan R. Jones, Jonathan Ng, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

In the summer of 2012, transactional law clinics from three U.S. law schools: George Washington University; Georgetown University; and the University of Michigan launched a collaboration to serve a common client—Ashoka, a global nonprofit organization that supports close to 3,000 social entrepreneurs across 76 countries. While clinic collaborations within universities happen occasionally, clinic collaborations across universities are unusual. This essay focuses on the motivations, operations, lessons, and next steps of this cross-university, clinical collaboration aimed at advancing social entrepreneurship globally. Specifically, this essay examines why the collaboration was launched, how the collaboration is structured, what the collaboration offers clients and …

Things We Do With Presumptions: Reflections On Kiobel V. Royal Dutch Petroleum, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The author argues in part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. He argues further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court’s opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.

Even when the presumption against …

The Irs Under Siege, Tanina Rostain, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

This is Chapter 1 of Confidence Games (MIT, 2014).

Confidence Games provides an account of the wave of tax shelters that occurred at the turn of the twenty-first century. During this period, some of America’s most prominent law and accounting firms created and marketed products that enabled the very rich—including newly minted dot-com millionaires—to avoid paying their share of taxes by claiming benefits not recognized by law. These abusive tax shelters bore names like BOSS, BLIPS, and COBRA and were developed by such prestigious firms as KPMG, Ernst & Young, BDO Seidman, the now defunct Jenkens & Gilchrist and Brown …

A Writing Revolution: Using Legal Writing's 'Hobble' To Solve Legal Education's Problem, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

The attached article responds to a 2011 article by John Lynch, published in the Journal of Legal Education, that urged legal writing faculty to return to an outmoded and ineffective writing pedagogy, the “product approach,” on the grounds that it would make teaching legal writing easier. This article builds on the work of Carol McCrehan Parker and others interested in writing across the curriculum and argues that the only way to reduce legal writing’s “hobble” and to solve legal education’s problem is to create a six-semester writing requirement. The reason law students are graduating without adequate preparation for practice is …

Agency Enforcement Of Spending Clause Statutes: A Defense Of The Funding Cut-Off, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

This article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, …

Regulating Sexual Harm: Strangers, Intimates, And Social Institutional Reform, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms—from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child—the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity. All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions. These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the …

Libertarian Patriarchalism: Nudges, Procedural Roadblocks, And Reproductive Choice, Govind Persad

Georgetown Law Faculty Publications and Other Works

Cass Sunstein and Richard Thaler's proposal that social and legal institutions should steer individuals toward some options and away from others-a stance they dub "libertarian paternalism"-has provoked much high-level discussion in both academic and policy settings. Sunstein and Thaler believe that steering, or "nudging," individuals is easier to justify than the bans or mandates that traditional paternalism involves.

This Article considers the connection between libertarian paternalism and the regulation of reproductive choice. I first discuss the use of nudges to discourage women from exercising their right to choose an abortion, or from becoming or remaining pregnant. I then argue that …

Tax, Command -- Or Nudge?: Evaluating The New Regulation, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article compares for the first time the relative economic efficiency of “nudges” and other forms of behaviorally-inspired regulation against more common policy alternatives, such as taxes, subsidies, or traditional quantity regulation. Environmental economists and some legal commentators have dismissed nudge-type interventions out of hand for their failure to match the revenues and informational benefits taxes can provide. Similarly, writers in the law and economics tradition argue that fines are generally superior to non-pecuniary punishments.

Drawing on prior work in the choice-of-instruments literature, and contrary to this popular wisdom, I show that nudges may out-perform fines, other Pigouvian taxes, or …

How Many Wrongs Make A Copyright?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full …

The Increasing Weight Of Regulation: Countries Combat The Global Obesity Epidemic, Allyn L. Taylor, Emily W. Parento, Laura A. Schmidt

Georgetown Law Faculty Publications and Other Works

Obesity is a global epidemic, exacting an enormous human and economic toll. In the absence of a comprehensive global governance strategy, states have increasingly employed a wide array of legal strategies targeting the drivers of obesity. This article identifies recent global trends in obesity-related legislation and makes the normative case for an updated global governance strategy.

National governments have responded to the epidemic both by strengthening traditional interventions and by developing novel legislative strategies. This response consists of nine important trends: (1) strengthened and tailored tax measures; (2) broader use of counter-advertising and health campaigns; (3) expanded food labeling; (4) …

Tax Advisors And Conflicted Citizens, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Thousands of lawyers are involved every day in advising clients outside of litigation. These lawyers counsel clients on how they can benefit from or avoid violating statutes, regulations, and other sources of law. How should we think about the obligations of the lawyer in this setting? This article argues that we should eschew a single prescriptive model of the advisor in favor of a pluralistic conception that bases responsibilities on the salient factors of the context in which the advisor operates.

The model of the advocate that suggests that the lawyer take a relatively aggressive approach to interpreting the legal …

The Global Health Security Agenda In An Age Of Biosecurity, Lawrence O. Gostin, Alexandra Phelan

Georgetown Law Faculty Publications and Other Works

Historically, the Oval Office has been a leader in global health assistance. From the President’s Emergency Plan for AIDS Relief (PEPFAR) and the President’s Malaria Initiative (PMI) under the Bush Administration, to the Global Health Initiative launched by President Obama in 2009. However, unlike PEPFAR and PMI, the Global Health Initiative met an untimely end with the launch of a bold new global health measure by the Obama Administration: the Global Health Security Agenda (GHS Agenda). The GHS Agenda aims to “accelerate progress toward a world safe and secure from infectious disease threats” through a US-led diplomatic collaboration with 30 …

Governing For Health As The World Grows Older: Healthy Lifespans In Aging Societies, Lawrence O. Gostin, Anna Garsia

Georgetown Law Faculty Publications and Other Works

So much of global health governance focuses intensely on a brief moment in the human lifespan—from a safe birth to infant and child survival. Yet, with all the attention to this early window of life (infancy to age five), the opposite end of the life spectrum is comparatively neglected. The Millennium Development Goals (MDGs) do not mention a healthy lifespan or a healthy old age. This inadequate attention to the older years of the life appears to be a glaring omission given the universal challenges posed by aging societies. Aging is a demographic fact in almost all countries, but it …