Law Commons^™

Uncle Sam Is Watching You, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Toward A New Constitutional Anatomy, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In …

Constitutional Dialogue And Human Dignity: States And Transnational Constitutional Discourse, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court has been slower than some other national courts to become familiar with and discuss, distinguish, or borrow from related constitutional approaches of other nations and systems. The growth in transnational judicial discourse, especially on constitutional issues relating to human rights, has been remarked by many. National courts in Argentina, Botswana, Canada, Germany, India, South Africa, and elsewhere not infrequently refer to the constitutional jurisprudence of other nations in resolving domestic constitutional questions. Although such references are not unheard of in the United States, transnational discourse involving national courts, supranational and international tribunals is still subject to …

Egyptian Feminism: Trapped In The Identity Debate, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

This Article argues that if we wish to account for the limited gains made in the area of family law reform in Egypt in the twentieth century, it is crucial to relate the debate on family law with another debate, one revolving around the identity of the Egyptian legal system. Whereas the dispute over family law reform forced decisions on gender and the family, the contest surrounding identity centered on the ongoing and agonized struggle by Egyptians to define the nature of their country's contemporary cultural identity. The question of identity was often framed as a debate over the "character" …

Deliberate Extinction: Whether To Destroy The Last Smallpox Virus, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The target problem to be examined is smallpox. Specifically, what should we (the United States and the entire world) now do with the last known residual samples of the virus that causes this uniquely horrific disease? The illness itself has virtually disappeared from the catalogue of human afflictions: due to a stunningly imaginative, concerted, and resolute campaign of the World Health Organization (WHO) through the 1970s, no one has contracted this deadly impairment for twenty-five years. Yet the causative element, an insidious scourge known as the variola virus, still remains, housed for now in high-security freezers at the U.S. Centers …

Promissory Fraud Without Breach, Gregory Klass, Ian Ayres

Georgetown Law Faculty Publications and Other Works

This Article, in keeping with the theme of this Symposium, explores the possibility of promissory fraud liability where there is no breach of contract. It is well known that mere breach of contract is not sufficient to make out a claim of promissory fraud. This rule makes eminent sense, for a promisor who initially intended to perform may have later changed her mind. Here we pose the converse question: is it possible to have promissory fraud liability without a breach?

Overcoming Resistance To Diversity In The Executive Suite: Grease, Grit, And The Corporate Tournament, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Once we open the corporate governance/human resources nexus to deeper inquiry, mutual scholarly interest in diversity and discrimination follows naturally. Firms have complex motives to take nondiscrimination and the promotion of diversity seriously. First, at least certain forms of discrimination are both unlawful and socially illegitimate and hence present threats of potential liability and injury to reputation. Second, human resources demands are such that attracting and motivating a diverse workforce is a competitive imperative. At the same time, however, offsetting economic forces may exist that favor subtle forms of discrimination and hostility to diversity, even if intentional and overt racial …

Technological Evolution And The Devolution Of Corporate Financial Reporting, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

My claim is that the technology link to the recent disclosure scandals is no coincidence. To be sure, cheating tempts all who seek wealth, in whatever line of business they find themselves. I want to show, however, how the rapid pace of innovation at a number of levels offered motive, opportunity, and rationalization for a downshift in financial reporting norms, which in turn made outright fraud more probable.

The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this paper I will explore the idea of a "neutral" lawyer who may have neither "client" (in the conventional sense of client) to represent nor advocacy to perform, yet still be functioning fully as a lawyer or "learned professional" schooled in the law. Indeed, in this paper I will suggest that lawyers may be especially useful in performing a variety of "new" functions that depart from traditional conceptions of the lawyer's role, but which lawyers may be especially well suited to perform. It may be counter-cultural to think of lawyers as "consensus builders," rather than as advocates or makers …

Remembrance Of Things Past? The Relationship Of Past To Future In Pursuing Justice In Mediation, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this Article I seek to explore, not resolve, some of the issues and tensions in the role of temporality in achieving justice through mediative processes and to suggest some correctives at the practice level, as well as encourage some deeper thinking at the theoretical level. I focus here on issues of expression of temporality ("the past") in the "justice and mediation" question, not on issues of how the past should be judged - by the rule of law, culture, or universal human rights principles, or even how it can be "managed" when understandings of the past conflict or cannot …

The Politics Of Embryonic Discourse, Kevin P. Quinn

Georgetown Law Faculty Publications and Other Works

In our brave new world of stem cells, clones, and parthenotes,l how should we talk about early human embryos? In fashioning a response to this very thorny question, Ann Kiessling has a core message. It is: (1) that new science produces "new" conceptuses; (2) that science and scientists have failed to differentiate (with appropriate clarity) these new ex vivo conceptuses from those created in vivo; (3) that new, more appropriate and scientifically-informed, terms are necessary; and (4) that this new language should transform the public discourse about human embryos. No one would deny that the subtleties of human embryology are …

Aliens, The Internet, And "Purposeful Availment": A Reassessment Of Fifth Amendment Limits On Personal Jurisdiction, Wendy Collins Perdue

Georgetown Law Faculty Publications and Other Works

This Article first considers the Fourteenth Amendment cases and argues that the constitutional limits on the jurisdictional authority of state courts reflect a view about the limits of state authority. It then turns to the Fifth Amendment and, after considering the practices of other nations and lessons from prescriptive jurisdiction, argues that the United States's sovereign authority should allow it to assert personal jurisdiction solely on the basis of effects in the United States, without a requirement of "purposeful availment." It further argues that concerns about reasonableness should be addressed at the subconstitutional level. This Article is built on two …

Analyzing The Bipartisan Campaign Reform Act Of 2002, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

The Bipartisan Campaign Reform Act of 2002 ("BCRA") is the laboratory in campaign finance law. When analyzing BCRA, it is important to look at the Missouri state law that led to the Supreme Court case, Nixon v. Shrink Missouri Government PAC. In Shrink Missouri, five justices upheld Missouri's relatively low simple limit on contributions to candidates. The law in Missouri limited contributions by anyone to candidates, but there was no limit as to how much a person or entity could give to a political party committee or to a political action committee (PAC). Further, there was no limit on how …

Defense-Oriented Judges, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this essay, I argue in favor of so-called "defense-oriented judges." Instead of the increasingly prosecution-oriented judicial aspirants who ascend to the bench, we need more judges who care about protecting the rights of the accused, who will put the government to the test, and who have some compassion for those who come before them. Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants are in fact guilty, or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who …

Too Much Heart And Not Enough Heat: The Short Life And Fractured Ego Of The Empathic, Heroic Public Defender, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this Article I will examine Professor Ogletree's paradigm for motivating and sustaining public defenders ten years after he proposed it. I will discuss whether Professor Ogletree's paradigm works for defenders in the predominantly high-volume, urban settings in which they practice, and if so, for how long. If the paradigm works for short-term defenders only - or those with smaller caseloads - then perhaps it is a temporary, not a sustaining, motivation. I will examine whether the paradigm is helpful- on an aspirational level if nothing else – or whether it emphasizes motivations that are ultimately self-defeating. After discussing Professor …

Left Out, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

My thesis is that the left's problem regarding criminal justice is at least partially of its own making. Specifically, the problem stems from deep contradictions in the left's positions. Progressives have not one position on crime, but at least seven different ones, and these positions cannot be reconciled. Most of this essay consists of a taxonomy of conflicting progressive views on criminal justice. Before I begin, however, I need to qualify my thesis in three important ways. First, as will become obvious, what I present below amounts to no more than brief descriptions - really evocations - of attitudes, arguments, …

Out Of Bounds, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerance wish to include only those ideas and groups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument; yet, any plausible version of constitutional law must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent …

Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular …

Defending A Rule Of Institutional Autonomy On "No-Harm" Grounds, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

The argument I sketch here for institutional autonomy is basically empirical and agrees with Professor Hamilton in making harm-reduction the overriding social goal. The argument proceeds in two steps. First, I suggest that autonomous institutions may be able to socialize their adherents more effectively than institutions that lack autonomy and that - if the institutions' values are compatible with the legislature's - their more effective socialization can produce a net reduction in the harms inflicted by the institutions' members. Second, autonomy for all institutions can be defended if the gains from assuring autonomy for groups whose values are compatible with …

The Coiled Serpent Of Argument: Reason, Authority, And Law In A Talmudic Tale, David Luban

Georgetown Law Faculty Publications and Other Works

One of the most celebrated Talmudic parables begins with a remarkably dry legal issue debated among a group of rabbis. A modern reader should think of the rabbis as a collegial court, very much like a secular appellate court, because the purpose of their debate is to generate edicts that will bind the community. The issue under debate concerns the ritual cleanliness of a baked earthenware stove, sliced horizontally into rings and cemented back together with unbaked mortar. Do the laws of purity that apply to uncut stoves apply to this one as well? This stove is the so-called "oven …

Litigation Campaigns And The Search For Constitutional Rules, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Journal's focus on appellate practice and procedure suggests that it might be appropriate and productive to take a somewhat unusual approach to Brown and its significance. Brown was most important, of course, for its role in the transformation of American race relations. From the point of view of the appellate courts, Brown is significant in another way. Brown was the culmination of a sustained campaign of strategically designed litigation-or so it came to be thought. Lawyers subsequently took the strategic litigation campaign they saw ending in the triumph of Brown as a model for their own causes, and developed …

The Secret Life Of The Political Question Doctrine, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."

The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming …

Introduction: Fordham Sports Law Forum, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Introduction to the Fordham Sports Law Forum at Fordham University School of Law.

Since its founding in 1996, the Fordham Sports Law Forum has attracted numerous distinguished speakers to the school who have graciously shared their expertise and insight into the intersecting worlds of sports, law, and business. These participants have greatly enriched and invigorated the academic environment for many of your students and have made this venue one of the highlights of the academic year.

Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay.

Living With Lawrence, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This Article will proceed in three steps. First, I will examine the Court's treatment of liberty. I see Lawrence as marking the emergence of a new approach to substantive due process analysis, one that has been simmering in the concurring opinions of Justices Souter, Stevens, and Kennedy for the last decade. These three Justices apparently now have a majority for extending meaningful constitutional protection to liberty interests without denominating them as fundamental rights. They also appear to be jettisoning, at least prospectively, a special category for privacy rights. Second, I will turn my attention to the ramifications of Lawrence's equality …

Building A Better Seating Chart For Sovereign Restructurings, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Every sovereign debt restructuring in recent memory has wrestled with the problem of inter-creditor equity. Governments have discriminated among creditors in ways that were hard to predict and often were not revealed until after a debt default. In contrast, debts of firms, individuals and even localities are ranked in order of priority established by contract and statute. This ranking is known at borrowing, generally corresponds to the order of repayment in bankruptcy liquidation, and helps define the creditors' relative bargaining power in reorganization. Without a bankruptcy backstop, most debts of national governments are legally equal. Yet in practice, sovereign immunity …

Regulatory Takings Challenges To Historic Preservation Laws After Penn Central, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Penn Central decision, in its most immediate concern, provided a legal framework within which local governments could enforce historic landmark restrictions without a regular constitutional requirement to pay "just compensation." The decision amalgamated regulatory takings analysis of historic landmark restrictions to the familiar and tolerant federal standards for reviewing zoning. Affirming the importance of the public interest goals of historic preservation, the Court directed inquiry to whether sufficient economic potential remained in the control of the property owner, given reasonable expectations at the time of her investment in the property. While the broader jurisprudential merits of Penn Central's approach …

The Proper Scope Of The Police Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this Article, I will contend that the Constitution is not really silent at all on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism-and its limits. These limits require that interpretation of original meaning be implemented by means …

Leaders, Followers, And Free Riders: The Community Lawyer’S Dilemma When Representing Non-Democratic Client Organizations, Michael R. Diamond, Aaron O'Toole

Georgetown Law Faculty Publications and Other Works

This article will explore various aspects of the dissonance between the democratic ideal and the reality of groups in disenfranchised and disempowered communities. We will discuss the intersection of democracy and community action by examining the sociology of groups and the social psychology of leaders and followers. We will also examine the role of, and choices presented to, an attorney working in a community and for local community groups.

Folktales Of International Justice, David Luban

Georgetown Law Faculty Publications and Other Works

When Laura Dickinson asked me to participate on this panel, she very nicely said that she hoped I could bring a different perspective to the discussion. I thought I knew what she meant. The other panelists share a profound knowledge of how international criminal-law institutions work. My "different perspective" would therefore be the perspective of abject ignorance.

Taking comfort from the Socratic dictum that there is wisdom in knowing what you do not know, I accepted the invitation because it gives me the opportunity to pose questions rather than proposing answers. I will raise my questions by examining some stories …