Law Commons^™

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

The State Of Asylum Representation: Ideas For Change, Andrew I. Schoenholtz, Jonathan Jacobs

Georgetown Law Faculty Publications and Other Works

The plight of refugees-those who flee persecution-touches a chord with Americans, who have supported both a substantial overseas resettlement program and a fair system for asylum seekers. U.S. laws provide a seemingly full opportunity for asylum applicants to explain their fear or actual experience of persecution. In fact, the U.S. offers an extensive process of interviews, hearings, and appeals to ensure that bona fide refugees are not sent back to their persecutors. The substantive law, too, has been developed considerably through administrative and judicial precedents. But how meaningful is a process that, no matter how extensive and developed, leaves asylum …

The Constitutional Duty Of A National Security Lawyer In A Time Of Terror, James E. Baker

Georgetown Law Faculty Publications and Other Works

National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001.

The National Security Process And A Lawyer’S Duty: Remarks To The Senior Judge Advocate Symposium, James E. Baker

Georgetown Law Faculty Publications and Other Works

September 11 changed so much about our lives and how we perceive national security. Harold Lasswell, in an earlier context, described the sharing of danger throughout society as the “socialization of danger,” which he wrote was a permanent characteristic of modern violence; but not for America until September 11. The socialization of danger has made ordinary citizens participants in the national security process in a way not previously experienced. In addition, it has brought relatively unknown federal agencies, like the Federal Emergency Management Agency and the Centers for Disease Control, to the forefront of national security planning and response. And …

The Bounds Of Zeal In Criminal Defense: Some Thoughts On Lynne Stewart, Abbe Smith

Georgetown Law Faculty Publications and Other Works

What caused Lynne Stewart, after more than two decades of defense lawyering in the best tradition of the legal profession to cross the line? Holding aside the political climate of the times, did Stewart's approach to lawyering--whether in political or not terribly political cases--lead to her demise? Is her approach to lawyering different from most of the bar?

This paper discusses the conduct that led to Stewart's prosecution and her approach to lawyering generally. The author examines whether her view of zeal and devotion is at odds with the prevailing ethics and ethos of defense lawyering, and, if not, what …

Protecting Plaintiffs' Sexual Pasts: Coping With Preconceptions Through Discretion, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Part I of this Article traces the development of the civil application of Rule 412, the so-called “Rape Shield Rule”. Part II analyzes the inconsistencies within the cases decided under the new civil rule and links those inconsistencies to the language of the rule. It identifies the trends within the cases about what constitutes probative value for purposes of the rule and how courts assess prejudice. The Article concludes that rules of evidence designed to remedy bias of fact finders should not be cast as discretionary. Many of the problems that arise in the interpretation of Rule 412 could be …

Treaties And The Eleventh Amendment, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …

Enron And The Dark Side Of Shareholder Value, William W. Bratton

Georgetown Law Faculty Publications and Other Works

This Article addresses the implications that the Enron collapse holds out for the self-regulatory system of corporate governance. The case shows that the incentive structure that motivates actors in the system generates much less powerful checks against abuse than many observers have believed. Even as academics have proclaimed rising governance standards, some standards have declined, particularly those addressed to the numerology of shareholder value. The Article's inquiry begins with Enron's business plan. The Article asserts that there may be more to Enron's "virtual firm" strategy than meets the eye beholding a firm in collapse. The Article restates the strategy as …

Federalism, Law Enforcement, And The Supremacy Clause: The Strange Case Of Ruby Ridge, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

There is no "federalism clause" in the Constitution, and the case law ranges over a number of different provisions - the Commerce and General Welfare Clauses, and the Eleventh and Fourteenth Amendments, for example. But the two provisions that most directly implicate the doctrine are the Supremacy Clause and the Tenth Amendment. The former states that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land ....”, The latter provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by …

Liberty And Property In The Patent Law, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Patents have seldom troubled civil libertarians. A specialized form of property, patents seemed pertinent to the technologies of traditional industry but little else. Patent instruments offered their readers mere technical documentation; patent cases presented no more than the mapping of a text onto an instantiated artifact; patent policy was principally oriented toward economic optimization of the length and scope of protection. Unbound from technology, contemporary patent law now seems a more robust discipline. Modern patent instruments appropriate a diverse array of techniques that span the entire range of human endeavor. Patent claims, cut loose from physical moorings, have grown more …

Tradition, Principle And Self-Sovereignty: Competing Conceptions Of Liberty In The United States Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United …

Consenting To Form Contracts, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this essay, I will identify one theoretical source of the common antipathy towards form contracts and why it is misguided. I contend that the hostility towards form contracts stems in important part from an implicit adoption of a promise-based conception of contractual obligation. I shall maintain that, when one adopts (a) a consent theory of contract based not on promise but on the manifested intention to be legally bound and (b) a properly objective interpretation of this consent, form contracts can be seen as entirely legitimate-though some form terms may properly be subject to judicial scrutiny that would be …

Venture Capital On The Downside: Preferred Stock And Corporate Control, William W. Bratton

Georgetown Law Faculty Publications and Other Works

This Article takes the occasion of the simultaneous collapse of the high technology stock market and the failure of the dot-coin startups, along with the subsequent retrenchment of the venture capital business, to examine the law and economics of downside arrangements in venture capital contracts. The subject matter implicates core concerns of legal and economic theory of the firm. Debates about the separation of ownership and control, relational investing, takeover policy, the law and economics of debt capitalization, and bankruptcy reform, all grapple with the downside problem of controlling and terminating unsuccessful managers for the benefit of outside debt and …

Are Judges Motivated To Create "Good" Securities Fraud Doctrine?, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

‘How Do Judges Maximize? (The Same Way Everybody Else Does – Boundedly): Rules of Thumb in Securities Fraud Opinions’, by Stephen M. Bainbridge and G. Mitu Gulati, confronts the reader with a theory about judicial behavior in the face of complex, "unexciting" cases such as those involving securities fraud. The story is simple: few judges find any opportunity for personal satisfaction or enhanced reputation here, so they simply try to minimize cognitive effort, off-loading much of the work that has to be done to their clerks. The evidence that Bainbridge and Gulati offer is the creation of some ten or …

Ordered Liberty And The Homeland Security Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

This paper will start with a brief discussion of the terrorism threat because the threat remains predicate for any serious discussion of where we draw our legal lines. I will then suggest a legal model for looking at questions of homeland security called ordered liberty. The model is simple. First, given the nature of the threat, the executive must have broad and flexible authority to detect and respond to terrorism-–to provide for our physical security. Second, the sine qua non for such authority is meaningful oversight. Oversight means the considered application of constitutional structure, executive process, legal substance, and relevant …

Is The Rehnquist Court An "Activist" Court? The Commerce Cause Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called "judicial activism"? To answer this question, we must clarify the meaning of the term "judicial activism." With this meaning in hand, the author examines the Court's Commerce Clause cases. The answer he …

The Complex Uses Of Sexual Orientation In Criminal Court, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Times may or may not be changing for gay people in the criminal justice system--and for the import of sexual orientation in criminal law. It depends on the nature of the case and, more importantly, exactly whose sexual orientation we are talking about.

Signs of positive change include the recent high profile Matthew Shepard and Diane Whipple cases, in which gay and lesbian homicide victims were mourned not only by the gay community, but also by the entire country. It was no doubt helpful that both Shepard and Whipple presented very appealing images of gay people: each was young, attractive, …

Congress's Power To Promote The Progress Of Science: Eldred V. Ashcroft, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates the issues raised by Eldred v. Ashcroft, in which the Supreme Court may decide whether the Copyright Term Extension Act (CTEA) exceeds Congress's authority under that clause. The essay frames the issues in Eldred v. Ashcroft by discussing the history of copyright legislation in general and the CTEA in particular and then summarizing the procedural history of Eldred v. Ashcroft. The essay then undertakes a detailed investigation of the text of the Intellectual Property Clause, with a special emphasis on the interpretation of the clause by the first Congress and early judicial decisions. Three elements …

The War On Terrorism And The End Of Human Rights, David Luban

Georgetown Law Faculty Publications and Other Works

In the immediate aftermath of September 11, President Bush stated that the perpetrators of the deed would be brought to justice. Soon afterwards, the President announced that the United States would engage in a war on terrorism. The first of these statements adopts the familiar language of criminal law and criminal justice. It treats the September 11 attacks as horrific crimes—mass murders—and the government’s mission as apprehending and punishing the surviving planners and conspirators for their roles in the crimes. The War on Terrorism is a different proposition, however, and a different model of governmental action—not law but war. Most …

Professional Discipline For Law Firms? A Response To Professor Schneyer’S Proposal, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Model Rule of Professional Conduct 5.1(a) requires individual partners to make "reasonable efforts" to ensure that their firm has measures in effect that give "reasonable assurance" that all lawyers in the firm conform to ethical rules. Similarly, Model Rule 5.3(a) imposes upon individual partners the obligation of making "reasonable efforts" to ensure that the firm has measures in place giving "reasonable assurance" that the conduct of non-lawyers affiliated with the firm is compatible with the partner's professional obligations. These rules were adopted to encourage firms to create firm cultures and institute prophylactic policies and procedures--an "ethical infrastructure"--that would prevent misconduct …

Yale Rosenberg: The Scholar And The Teacher Of Jewish Law, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

In the early 1980s, when he was a young professor at the University of Houston Law Center, the author had the occasion to meet Yale Rosenberg. It was clear from their discussion that Professor Rosenberg had a strong interest in Jewish law as well as a strong knowledge base. They discussed teaching such a course at the University of Houston Law Center. Professor Rosenberg was doubtful about teaching a course in Jewish law at a secular law school, particularly one in Texas. But that conversation began a series of conversations where Yale explored in some depth the course that we …

Democracy And Legitimation: A Response To Professor Guinier, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay is a response to Supreme Democracy: Bush v. Gore Redux, an essay by Lani Guinier (2002).

The author critiques Professor Lani Guinier’s essay through a discussion of the maldistribution of wealth in American society, which he argues is accepted by American people thanks to the existence complex structures that allow them to distance themselves from it. He discusses four legitimation structures as he critiques this essay.

Professor Guinier focuses on the belief in meritocracy. For our purposes, we might define a believer in meritocracy as someone who thinks that, in a given society, people get more or less …

Faith And Funding: Toward An Expressivist Model Of The Establishment Clause, David Cole

Georgetown Law Faculty Publications and Other Works

This article seeks to provide an alternative to the polarization that so often characterizes debates about church and state. In Part I, the author suggests that there are good policy reasons for supporting faith-based initiatives, and that these reasons ought to be attractive to liberals and progressives, many of whom have opposed faith-based initiatives. Faith-based social services are, after all, social services, and are often the very types of welfare services that liberals and progressives tend to support. Core religious values--in particular, concern about the less fortunate, a belief in human dignity, and a commitment to the possibility of redemption--reinforce …

Enemy Aliens, David Cole

Georgetown Law Faculty Publications and Other Works

In the wake of September 11, many have argued that the new sense of vulnerability that we all feel calls for a recalibration of the balance between liberty and security. In fact, however, much of what our government has done in the war on terrorism has not asked American citizens to make the difficult choice of deciding which of their liberties they are willing to sacrifice for increased security. Instead, the government has taken the politically easier route of selectively sacrificing the rights of aliens, and especially Arab and Muslim aliens, in the name of furthering national security. This is …

Even Before Enron: Banking Regulators, The Income Tax, The S&L Crisis, And Deceptive Accounting At The Supreme Court, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

Years before the ENRON debacle, the Supreme Court heard a pair of cases involving dishonest financial accounting, Frank Lyon Co. v. U.S. and Cottage Savings Ass'n. v. Commissioner. In both cases, federal bank regulators had encouraged deceptive financial accounting, and the deceptive accounting became the basis for taxpayer claims. The Supreme Court, however, did not comment in either opinion on the deceptive character of the financial accounting that gave rise to tax litigation.

Perceptions About The Wto Trade Institutions, John H. Jackson

Georgetown Law Faculty Publications and Other Works

This article, based on a lecture given at the inauguration ceremony for the new Advisory Centre on WTO Law, describes the broader world trading landscape into which this new Centre emerges. Taking into account the possible implications of the events on September 11, this article provides a brief analysis of the current trade policy climate, asserting the necessity of institutions for the successful functioning of markets. After a short institutional history of the GATT/WTO, the author describes the importance of institutional rules, treaty text, and practice for the success of the WTO and presents the current debate over what the …

Trust And Betrayal In The Medical Marketplace, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The author argues in this Comment that disingenuity as first resort is an unwise approach to the conflict between our ex ante and our later, illness-endangered selves. Not only does rationing by tacit deceit raise a host of moral problems, it will not work, over the long haul, because markets reward deceit's unmasking. The honesty about clinical limit-setting that some bioethicists urge may not be fully within our reach. But more candor is possible than we now achieve, and the more conscious we are about decisions to impose limits, the more inclined we will be to accept them without experiencing …

Never Trust A Corporation, William W. Bratton

Georgetown Law Faculty Publications and Other Works

I would like to start by noting multitudinous objections to assertions made in Larry Mitchell's Corporate Irresponsibility: America's Newest Export. But I waive these points for purposes of this Symposium. I would prefer to take the occasion to celebrate the book. So I will make two points on the subject of corporate social responsibility on which the book and I stand in complete accord.

Overcoming Property: Does Copyright Trump Privacy?, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This essay does not attempt to specify the privacy rights that users might assert against the purveyors of DRM systems. Instead, it undertakes a very preliminary, incomplete exploration of several questions on the "property" side of this debate. What is the relationship between rights in copyrighted works and rights in things or collections of bits embodying works? In particular, as the (popular and legal) understanding of copies of works as residing in "things" becomes largely metaphorical, how should the law construct and enforce boundedness with respect to those copies? Does the calculus of property and contract allow for consideration of …

In Aid Of Removal: Due Process Limits On Immigration Detention, David Cole

Georgetown Law Faculty Publications and Other Works

In this Article, I seek to demonstrate the radical consequences that taking due process seriously would have for immigration detention as currently practiced. Part I lays out the general principles that apply to civil preventive detention, which establish that substantive due process is violated without an individualized showing after a fair adversarial hearing that there is something to prevent, namely danger to the community or flight. Part II applies this general framework to immigration detention. It first demonstrates, by a review of Supreme Court decisions, that the Court has applied the same due process principles to immigration detention that it …