Law Commons^™

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 …

Exclusionary Conduct, Effect On Consumers, And The Flawed Profit-Sacrifice Standard, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The central thesis of this article is that the use of the profit-sacrifice test as the sole liability standard for exclusionary conduct, or as a required prong of a multi-pronged liability standard is fundamentally flawed. The profit-sacrifice test may be useful, for example, as one type of evidence of anticompetitive purpose. In unilateral refusal to deal cases, it can be useful in determining the non-exclusionary benchmark. However, the test is not generally a reliable indicator of the impact of allegedly exclusionary conduct on consumer welfare - the primary focus of the antitrust laws. The profit-sacrifice test also is prone to …

Defending And Despairing: The Agony Of Juvenile Defense, Abbe Smith

Georgetown Law Faculty Publications and Other Works

I believe there is no more important work than defending kids, especially those accused of serious crimes. The consequences of juvenile crime are increasingly severe, whether kids remain in the juvenile system or are prosecuted as adults. We lock up too many people in this country, many of whom are children. Surely, at the start of the twenty-first century - given our knowledge about the causes of juvenile delinquency and crime - we can do more than put troubled kids in cages. So, why not work with young offenders who are on their way to becoming adult clients, to try …

Crystals And Mud In Nature, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

Professor James Salzman has written a wonderful article, which promises an equally wonderful book. His article intelligently and thoughtfully examines the forces that compete, conflict, and combine in the creation of laws relating to drinking water. These include, of course, the physical characteristics of the resource itself and how the resource relates to essential biological needs of humankind. But as Professor Salzman demonstrates, the biological role is only one of several perspectives on drinking water relevant to the kind of legal rules that apply to it. The article describes drinking water as a cultural resource, a social resource, and an …

The Liberal Legacy Of Bush V. Gore, David Cole

Georgetown Law Faculty Publications and Other Works

This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a …

Critical Constitutionalism Now, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The starting point for this essay is the claim that if the texts that critical scholars studied are unstable over time, then this must also be true of the studies themselves. There is no reason to suppose that the critical perspective, uniquely among all possible perspectives, reflects timeless and contextless truth. The question I want to ask, then, is what meaning the critical perspective has for us now in our new and dramatically transformed environment. I proceed in four parts. First, I address the meaning that critical scholars attributed to constitutional law in the late twentieth century. Second, I describe …

Anglo-American Privacy And Surveillance, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The United States’ Terrorism Surveillance Program represents just one of many expansions in surveillance since 9/11, as legal controls previously introduced to protect citizens’ privacy and to prevent the misuse of surveillance powers have been relaxed. What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. The issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears …

Clauses Not Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Clauses Not Cases is a Response to Robert Post and Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006.

In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; and third, that it is best implemented by asking nominees “to explain the grounds on which they would have voted in past decisions of the …

The World Bank's Uses Of The "Rule Of Law" Promise In Economic Development, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

In this chapter, the author seeks to disaggregate the World Bank and provide insight on the impact that particular groups have in dominant development strategies. By analyzing the internal dynamics among groups at the Bank, his aim is to illuminate the rise and fall of ideas about development and their resistance to both empirical evidence and academic critique. These internal dynamics include institutional inertia and constraints, groups’ struggle and competition over resources and prestige, and the relationship between groups at the Bank and the governments of borrowing countries.

The argument presented is that the conceptions of the rule of law …

Race, Money And Medicines, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Taking notice of race is both risky and inevitable, in medicine no less than in other endeavors. The literature on race as a classifying tool in clinical research poses this core dilemma: On the one hand, race can be a useful stand-in for unstudied genetic and environmental factors that yield differences in disease expression and therapeutic response. On the other hand, racial distinctions have social mean­ ings that are often pejorative or worse, especially when these distinctions are cast as culturally or biologically fixed. Our country's troubled past in this regard and the persistence of race-related disadvantage should keep us …