Law Commons^™

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 …

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 …

Introduction: One Hundred Years Of International Law At Fordham University, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

In the past 100 years, the connotations of the term "international" have changed dramatically. The ideas we have of concepts such as "international communication" and "global travel" are dramatically different from what those concepts would have meant to our forebears - if they had even thought in such terms. But an international perspective is not new at Fordham Law School. The idea of the interconnectedness of our social and legal systems with those of other Nations is one of the foundational values of our school, and it has shaped our history since we opened our doors 100 years ago.

From …

Hamdan V. Rumseld: The Legal Academy Goes To Practice, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Hamdan v. Rumsfeld is a rare Supreme Court rebuke to the President during armed conflict. The time is not yet right to tell all of the backstory of the case, but it is possible to offer some preliminary reflections on how the case was litigated, the decision, and its implications for the oft-noticed divide between legal theory and practice.

In a widely cited article, Judge Harry Edwards lamented "the growing disjunction between legal education and the legal profession," claiming that "many law schools. .. have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and …

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 …

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 …

Anti-Terrorist Finance In The United Kingdom And United States, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

This article adopts a two-tiered approach: it provides a detailed, historical account of anti-terrorist finance initiatives in the United Kingdom and United States—two states driving global norms in this area. It then proceeds to a critique of these laws. The analysis assumes—and accepts—the goals of the two states in adopting these provisions. It questions how well the measures achieve their aim. Specifically, it highlights how the transfer of money laundering tools undermines the effectiveness of the states' counterterrorist efforts—flooding the systems with suspicious activity reports, driving money out of the regulated sector, and using inappropriate metrics to gauge success. This …

Pervasively Distributed Copyright Enforcement, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In an effort to control flows of unauthorized information, the major copyright industries are pursuing a range of strategies designed to distribute copyright enforcement functions across a wide range of actors and to embed these functions within communications networks, protocols, and devices. Some of these strategies have received considerable academic and public scrutiny, but much less attention has been paid to the ways in which all of them overlap and intersect with one another. This article offers a framework for theorizing this process. The distributed extension of intellectual property enforcement into private spaces and throughout communications networks can be understood …

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 …

Constitutional Texting, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

"Constitutional Texting" introduces an account of constitutional meaning that draws on Paul Grice's distinction between "speaker's meaning" and "sentence meaning." The constitutional equivalent of speaker's meaning is "framer's meaning," the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions. The constitutional equivalent of sentence meaning is "clause meaning," the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and …

Beyond Coercion: Justice Kennedy's Aversion To Animus, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

In evaluating the constitutionality of religious displays, Justice Kennedy adheres to the coercion test. A crèche on the courthouse steps is acceptable because it does not coerce anyone to support or participate in a religious exercise. He rejects the endorsement test, which asks whether the display makes reasonable nonadherents feel like outsiders, finding it to be “flawed in its fundamentals and unworkable in practice.” Yet in the free exercise context, Kennedy has focused on whether a community shows hostility to minority faiths, and his opinions in Romer and Lawrence stress that legislatures acted unconstitutionally in showing animus to gays. Suppose …

Judicial Enforcement Of Treaties: Self-Execution And Related Doctrines, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This morning we will be discussing the judicial enforcement of treaties in the United States. In particular, I would like to focus on the relationship between a treaty's status as self-executing or not, and the question of its judicial enforceability.

Bond Covenants And Creditor Protection: Economics And Law, Theory And Practice, Substance And Process, William W. Bratton

Georgetown Law Faculty Publications and Other Works

This article examines contractual protection of unsecured financial creditors in US credit markets. Borrowers and lenders in the United States contract against a minimal legal background that imposes the burden of protection on the lender. A working, constantly updated, set of contractual protections has emerged in response. But actual use of available contractual technology varies widely, depending on the level of risk and the institutional context. The credit markets sort borrowers according to the degree of the risk of financial distress, imposing substantial constraints only on the borrowers with the most dangerous incentives. At the same time, the contracting practice …

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 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 …

"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Why might a court refer to non-U.S. law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S. law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. Rather, I mean that references to non-U.S. …

When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last "quality-control" …

Peace In The Valley: For Chris Iijima, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

The first time I saw Chris, he was speaking at a meeting of the East Coast Asian American Student Union, a semi-political but largely social gathering of college kids. I have learned over the years that law schools are adept at finding faculty of color who are smart and ineffectual. So, frankly, I was not expecting much when this Professor Iijima got up to talk. I was concentrating on preparing my own remarks, when I was hit by the whirlwind that is the public Chris Iijima. He got up and assumed the posture of a pugilistic grizzly bear. He actually …