Law Commons^™

Lifting Our Veil Of Ignorance: Culture, Constitutionalism, And Women's Human Rights In Post-September 11 America, Catherine Powell

Georgetown Law Faculty Publications and Other Works

While we live in an Age of Rights, culture continues to be a major challenge to the human rights project. During the drafting of the Universal Declaration of Human Rights (UDHR) in the 1940s and during the Cold War era, the periodic disputes that erupted over civil and political rights in contrast to economic, social and cultural rights could be read either explicitly or implicitly as a cultural debate.

Gender has figured prominently in this perceived culture clash, for example, with the Bush administration's use of Afghan women as cultural icons in need of liberation--a claim that helped justify the …

What Bush Wants To Hear, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Failed States, Or The State As Failure?, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

This article seeks to challenge a basic assumption of international law and policy, arguing that the existing state-based international legal framework stands in the way of developing effective responses to state failure. It offers an alternative theoretical framework designed to spark debate about better legal and policy responses to failed states. Although the article uses failed states as a lens to focus its arguments, it also has broad implications for how we think about sovereignty, the evolving global order, and the place of states within it.

State failure causes a wide range of humanitarian, legal, and security problems. Unsurprisingly, given …

Preventing The Subversion Of Devlin V. Scardelletti, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

In 2002, the U.S. Supreme Court ruled in Devlin v. Scardelletti that objecting class members could appeal a federal district court’s approval of a class settlement without first intervening in the litigation. Public interest lawyer Brian Wolfman says the ruling was a victory for both objectors and the integrity of class action procedure: Objectors, he argues, help keep fairness hearings fair.

But a number of courts are now ruling that Devlin only applies to non-opt-out class actions, rather than the much more numerous ones that give class members opt-out rights. In this article, Wolfman details the exact wording of the …

Cured Meat And Idaho Potatoes: A Comparative Analysis Of European And American Protection And Enforcement Of Geographic Indications Of Foodstuffs, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

Geographic indications, as defined by the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement"), are "indications which identify a good as originating in the territory of a member or region or locality in that territory where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin."

While the general concept of protecting geographically-significant products from competition has existed for centuries, the protection provided to geographic indications varies significantly, both between countries and according to the product being protected.

Since the protection of foodstuffs in both Europe and America is a less …

Artists Don't Get No Respect: Panel On Attribution And Integrity, Rebecca Tushnet, Jonathan Band, Robert Clarida, Eugene Mopsik

Georgetown Law Faculty Publications and Other Works

When I was considering the question of the moral right to attribution and how unauthorized fan creativity relates to that concept, it struck me that there are two interesting issues from a theoretical perspective. The first is: who gets the credit? When I was in law school and discovered fan fiction, the reason why I got into intellectual property was because most of these stories had a disclaimer-no copyright infringement intended, these characters aren't mine, I'm not making any money, please don't sue. And as a student, my question was – does that work? Is that good enough? I was …

Refugee Protection In The United States Post-September 11, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

The U.S. refugee resettlement program, was the first refugee protection casualty of the terrorist attacks. American officials perceived resettlement as being particularly vulnerable to security problems. That was not the case with the other major U.S. refugee protection program, the asylum system. That system was effectively revamped in 1995 to address a variety of abuses, in part connected to individuals involved in the 1993 World Trade Center bombing. Yet, even though official attention did not focus on asylum, subtle, significant changes have occurred. This article delineates and assesses these changes by closely examining data and developments at all levels of …

Controlling Executive Power In The War On Terrorism, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

How does - or should - the U.S. Constitution regulate the exercise of power in response to threats to national security, to ensure that power is used wisely? s Broadly speaking, two mechanisms of control are available: a separation-of-powers mechanism and a judicial-review mechanism. Both mechanisms aim to ensure that the national government exercises its power responsibly - with sufficient vigor to meet the nation's challenges, but without intruding on protected liberties. Under the separation-of-powers mechanism, nearly all of the work of regulating power is done by the principle that the President can do only what Congress authorizes. Its primary …

Past, Present, And Future Of Antitrust Enforcement At The Federal Trade Commission, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

The period from 1970 to the present - roughly a third of a century - has witnessed profound changes in the quality of regulation at the Federal Trade Commission and a remarkable convergence of antitrust enforcement policy between left and right, and between primarily legal as opposed to primarily economic approaches. With respect to substantive law, areas of intellectual debate and uncertainty remain, but viewpoint differences that existed between the 1960s and the 1980s are today vastly reduced. In the 1960s, emphasis was on populist values, hostility to "Bigness," protection of competitors (especially small business) as opposed to the competitive …

Turning From Damage Caps To Information Disclosure: An Alternative To Tort Reform, Kathryn Zeiler

Georgetown Law Faculty Publications and Other Works

Medical malpractice damage caps are among the most popular instruments of tort reform at the state level. The Bush administration proposed a federal damage cap on non-economic damages to quell the rise of medical malpractice insurance premiums despite the paucity of empirical evidence demonstrating that damage caps actually decrease premiums. This case study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis: therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organizations and physicians …

Introduction: The Fifth Annual A.A. Sommer, Jr. Lecture On Corporate, Securities & Financial Law, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Welcome and Introduction to the Fifth Annual A. A. Sommer, Jr. Lecture on Corporate, Securities & Financial Law, November 9, 2004 at Fordham University School of Law.

Fordham Law School, with the support of Morgan, Lewis & Bockius, inaugurated the A. A. Sommer, Jr. Lecture Series in the fall of 2000 with the timely insights of the Securities and Exchange Commission's (the "SEC" or the "Commission") then-Chair Arthur Leavitt. Since then, the Sommer Lecture has continued to bring to Fordham such heavyweights as Mary Schapiro, President of National Association of Securities Dealers ("NASD") Regulation, Inc., SEC Commissioner Harvey Goldschmid, and …

Foreword: What's So Wicked About Lochner?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief Foreword to a forthcoming symposium on Lochner v. New York, Professor Randy Barnett asks the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

The author answers that Lochner is objectionable precisely because its reliance on the Due …

The Unfulfilled Promise Of The Constitution In Executive Hands, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other branches …

Spiritual Custody: Relational Rights And Constitutional Commitments, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, the Zummos were unable to come to agreement about the religious upbringing of their three children. Prior to their marriage, Patricia and David had agreed that they would raise their children in the Jewish faith, and while they were married, "the Zummo family participated fully in the life of the Jewish faith and community." But after the divorce David wanted to take the children to Roman Catholic services as he saw fit, and he refused to arrange for the children's attendance at Hebrew School …

Immunity For Foreign Officials: Possibly Too Much And Confusing As Well, Barry E. Carter

Georgetown Law Faculty Publications and Other Works

In his thoughtful presentation, David Stewart observes from his daily experience that the law of international immunities is a "rather complex body of rules." In analyzing immunity issues, one needs to take into account treaties, laws, and/or cases that include, among others, the Foreign Sovereign Immunities Act, diplomatic and consular immunity, the case law regarding head of state immunity, and international organization law. In addition, there is pending the new UN Convention on Jurisdictional Immunities of States and their Property. Mr. Stewart also posits a general conclusion that in recent decades the general trend has been to limit the scope …

Shall We Overcome? Transcending Race, Class, And Ideology Through Interest Convergence, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

In the past year we have celebrated a number of civil rights milestones: the fiftieth anniversary of Brown v. Board of Education; the fortieth anniversaries of the March on Washington and of the Civil Rights Act of 1964. Collectively our nation now venerates our most progressive, socially transforming legal edicts, even as we accept, or ignore, persistent racial inequality. Much has been written about the limits and modern meaning of Brown. Elsewhere I have argued that we have failed to live up to the integrationist vision that animated Brown and the civil rights movement, primarily because our neighborhoods remain …

Human Nature, The Laws Of Nature, And The Nature Of Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The essay is divided into three parts. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking …

Screening The Law: Ideology And Law In American Popular Culture, Naomi Mezey, Mark C. Niles

Georgetown Law Faculty Publications and Other Works

This Article is an attempt to think critically about the pop cultural life of law, to investigate the legal and ideological messages that cultural images of law bear, and to explore how, why and to what extent television and film differ in their portrayals of law. While many legal scholars have addressed the legal content of popular culture in recent years, few have explored the field expansively or interrogated the significant differences in the images of law and legal institutions produced in the different popular media. Some scholars have traced one legal theme through popular culture generally, others have focused …

Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kathryn Zeiler, Kimberly D. Krawiec

Georgetown Law Faculty Publications and Other Works

This Article represents the first attempt to study empirically the factors that cause courts to impose disclosure duties on bargaining parties in some circumstances, but not in others. We analyze data coded from 466 decisions spanning a wide array of jurisdictions and covering over two hundred years. The results are mixed. In some instances our data support the conventional wisdom relating to common-law disclosure duties. For example, we find that courts are more likely to require the disclosure of latent, as opposed to patent, defects and are more likely to require disclosure when the parties are in a fiduciary or …

Loyalty, Paternalism, And Rights: Client Counseling Theory And The Role Of Child's Counsel In Delinquency Cases, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

This Article seeks to identify an attorney-child framework that will (1) give substantive meaning to the child's constitutional right to counsel in delinquency cases, (2) satisfy the ethical mandates of the Model Rules of Professional Conduct, (3) have the flexibility to accommodate cognitive limitations while enhancing the decisionmaking capacity of children and adolescents, and (4) engage parents in various aspects of the delinquency case without compromising the sanctity of the attorney-client relationship or sacrificing the fundamental rights, dignity, and autonomy of the child client.

Limiting Raich, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal …

A Civic-Republican Vision Of "Domestic Dependent Nations" In The Twenty-First Century: Tribal Sovereignty Re-Envisioned, Reinvigorated, And Re-Empowered, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

As a cure for what ails democracy in a pluralistic modem society, such as ours, Michael Sandel recommends "dispersing" sovereignty to a "multiplicity of [civic republican] communities--some more, some less extensive than nations." He intimates that doing this "may entail according greater cultural and political autonomy to subnational communities," which, in turn might "ease the strife that arises when state sovereignty is an all-or-nothing affair, absolute and indivisible, the only meaningful form of self-determination." He sees in federalism not just a "theory of intergovernmental relations," but a "political vision" that "self-government works best when sovereignty is dispersed and citizenship formed …

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …

Terrorist Speech And The Future Of Free Expression, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive …

The Very Idea Of A First Amendment Right Against Compelled Subsidization, Gregory Klass

Georgetown Law Faculty Publications and Other Works

At present, it is difficult to discern what rules govern compelled subsidization and where the constitutional limits lie. The root cause of the current confusion is the Supreme Court's failure to provide a coherent account of the First Amendment harm of compelled subsidization. Part I of this Article describes the present state of the doctrine. It identifies a number of practical problems, especially the imprecisions in and conflicts between the Court's holdings that leave it unclear how lower courts should decide novel cases. Part II is a critical discussion of the two most common arguments for a First Amendment right …

Anticompetitive Overbuying By Power Buyers, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Two types of single-firm overbuying are analyzed in this article. Predatory overbuying consists of overbuying inputs as a predatory strategy to cause buyer-side competitors in the input market to exit from the market or permanently shrink their capacity in order to gain monopsony power in the input market. Raising Rivals' Costs (RRC) overbuying consists of overbuying inputs as an exclusionary strategy to raise rivals' input costs and thereby gain market power in the output market. In most cases, the additional input purchases are used to produce output. However, in unusual cases a firm may engage in naked overbuying, that is, …

"Meet The New Boss": The New Judicial Center, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet's discussion of the Supreme Court's "new center. " The Guidelines urged Department of Justice litigators to foster a nearly exclusive reliance on original understanding in constitutional interpretation and to resort to legislative history only as a last resort. The Guidelines also advised Department of Justice litigators to seek substantive legal changes including more restrictive standing requirements, an end to the creation of unenumerated individual rights, greater constitutional protection of property rights, and greater limits on congressional power. …

Grading Justice Kennedy: A Reply To Professor Carpenter, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

I want to thank the editors of the Minnesota Law Review for soliciting this Reply to Professor Dale Carpenter's provocative analysis of my assessment of Justice Kennedy's opinion in Lawrence v. Texas. As it turns out, though we do disagree about Lawrence, Professor Carpenter and I have fewer disagreements than he thinks. To begin to see why, let us imagine that, like many other professors, he had used the facts and lower opinion in Lawrence as the basis for his final examination in his course on Constitutional Law. On the exam, he asked his students to write an opinion for …

Trumping Precedent With Original Meaning: Not As Radical As It Sounds, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest and Jeff Powell. Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original intentions of the Founders. Others raised the moral challenge of why we should be ruled by the "dead hand" of the past. Yet an originalist approach to interpretation has-like a phoenix from the ashes or Dracula from his grave, depending on your point of view-survived into the Twenty-first Century as an intellectual contender. Indeed, it has thrived like no other approach to interpretation.

Welfare, Dialectic, And Mediation In Corporate Law, William W. Bratton

Georgetown Law Faculty Publications and Other Works

Bill Klein extends an idealistic and progressive invitation with the Criteria for Good Laws of Business Association (the Criteria). The structure of our debates, he says, prevents us from joining the issue. The discourse will move forward if we can isolate core components on which we agree and disagree. The invitation, thus directed, is well-constructed. To facilitate engagement, each criterion is set out as pari passu with each other. And there is a good reason for the inclusion of each listed criterion. Each has an established place in public and private law jurisprudence. Each has influenced results, coming forth as …