Law Commons^™

Lawyering For Social Justice, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

It is an honor, albeit a sad one, to be invited to write this Essay in commemoration of Tom Stoddard and as commentary on his final publication.

I first met Tom in the late 1970s, when we both joined the Board of Directors of the Lambda Legal Defense and Education Fund. Both of us were American Civil Liberties Union staff attorneys, Tom for the New York Civil Liberties Union (NYCLU) and I for the Reproducfive Freedom Project in the national office. Later, for the last half of the 1980s, Tom was the Executive Director of Lambda during the same period …

Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I begin by thanking the UCLA Law Review, and particularly Darrin Mollet and Bryce Johnson, for seeing the timeliness of the topic of alternative dispute resolution and organizing this Symposium-collecting some of the best thinkers, writers, and practitioners in the field to discuss, among other things, the economics of ADR, the role of lawyers, courts, and judges in ADR, and the application of ADR to a variety of substantive legal and regulatory problems. In this Introduction, I would like to introduce the topics and the authors, and put them in the larger context of the movement that is now called …

Legal Fictions: Copyright, Fan Fiction, And A New Common Law, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

A girl owns a number of Barbie dolls. She makes outfits for them and constructs elaborate scenarios in which they play starring roles. She enacts her dramas in her front yard, where passers-by can easily see. Does she violate the law? What if the girl writes down her stories starring Barbie? What happens when she lets her friends read them? What if she e-mails those stories to a Barbie mailing list? What if she posts those stories and a picture of Barbie in her new outfit on her Web page?

Copyright law has long been a concern more for corporations …

Fame, The Founding, And The Power To Declare War, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Almost without discussion, and essentially without opposition, the Framers and Ratifiers of the United States Constitution vested in Congress the "Power ... To declare War, [and] grant Letters of Marque and Reprisal." During the past fifty years, one of the fiercest controversies in constitutional law has concerned what the Founders meant by this grant. It is a debate that has had, and that continues to have, dramatic importance. When Presidents committed troops or prepared to commit troops in Korea, Vietnam, Grenada, Panama, Iraq, Somalia, Haiti, and, most recently, Bosnia, they claimed that the Constitution did not require them to seek …

Congressional Self-Discipline: The Constitutionality Of Supermajority Rules, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Congress needs to be more disciplined. It has at times become sloppy and even cavalier. When, for example, Congress enacted the federal Gun-Free School Zone Act of 1990, it was asking for trouble. Neither the legislation nor the legislative history said anything about any effect on interstate commerce. It was therefore not surprising to see the Supreme Court strike the law down in United States v. Lopez.

Coping With Partiality: Justice, The Rule Of Law, And The Role Of Lawyers, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Lawyers help ameliorate a particular instance of what the author calls the problem of interest--the partiality problem. For he believes that it falls to law professors to imbue in their students an understanding of the important role that lawyers play in society, if for no other reason than they will need some emotional armament from the slings and arrows of incessant lawyer jokes and worse. In explaining how the existence of lawyers helps address the problem of partiality, the author also explains how adherence to property rights, freedom of contract, and the rule of law--concepts long disparaged by law professors--help …

Striving To Teach “Justice, Fairness, And Morality”, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

The MacCrate Report has reinvigorated legal education by identifying fundamental skills and values that are essential to effective lawyering. As we go through the process of ensuring that we train students in these fundamentals, we should not ignore the values identified in the report. At the heart of these values is the injunction that lawyers should strive to promote justice, fairness, and morality. Law schools and law teachers can play a significant role in instilling in our students a passion to ensure justice.

Free Speech At Work: Verbal Harassment As Discriminatory (Mis)Treatment, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

In his reply to my article on workplace harassment law and freedom of speech, Professor Volokh does not respond to my most important critiques of his earlier work. For example, he fails to grapple with the true complexity of the problem by focusing exclusively on one side of this conflict of rights-the burden that the law imposes on workplace expression. Equal attention must be paid to the other side: the harm inflicted by discriminatory speech on employees of a single gender. As I describe in detail in my original piece, these harms may include: an adverse effect on the quantity …

Some Reflections On Copyright Management Systems And Laws Designed To Protect Them, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Copyright management systems (CMS)—technologies that enable copyright owners to regulate reliably and charge automatically for access to digital works—are the wave of the very near future. The advent of digital networks, which make copying and distribution of digital content quick, easy, and undetectable, has provided the impetus for CMS research and development. CMS are premised on the concept of "trusted systems" or "secure digital envelopes" that protect copyrighted content and allow access and subsequent copying only to the extent authorized by the copyright owner. Software developers are testing prototype systems designed to detect, prevent, count, and levy precise charges for …

Law And Fancy, Robin West

Georgetown Law Faculty Publications and Other Works

Martha Nussbaum's graceful book Poetic Justice is an elegant brief for the importance of our capacity for imaginative "fancy" to our moral and legal lives. Imaginative fancy, Nussbaum argues, allows us to know the internal substance and quality of the lives of others. It allows us to come to appreciate, to understand, to share, and ultimately to resist others' suffering. It is, in short, the means by which we come to care about the fate and happiness of others. It is a part, but not the whole, of our capacity to transcend a narcissistic and infantile egoism. It is therefore …

Integrity And Universality: A Comment On Dworkin's Freedom's Law, Robin West

Georgetown Law Faculty Publications and Other Works

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or …

Dedicatory Essay: Honoring Ian Mccoll Kennedy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Ian Kennedy is perhaps the best known and most important figure in health law and ethics in the United Kingdom, and probably one of the most significant in Europe and North America. How did his life and career evolve to the point where he would wield such influence? This essay examines the leadership, erudition, and passion Ian Kennedy has brought to the field of health law and ethics. It is perhaps not an overstatement to suggest that Professor Kennedy virtually invented the field in the United Kingdom. He did so through his scholarship, public advocacy, and influence in shaping institutions, …

The Epidemics Of Injecting Drug Use And Blood-Borne Disease: A Public Health Perspective, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this article, the author first examines the mechanism by which blood-borne disease is transmitted through sharing of injection equipment. Thereafter, he presents a public health strategy for reducing multi-person use of contaminated injection equipment. This strategy includes: repealing or modifying current laws and regulations making possession and distribution of sterile injection equipment a criminal offense; implementing syringe exchange programs to expand access to new syringes for users of injection drugs; and counseling, education, and treatment targeted to injecting drug users (IDUs), including those in the prison and health care system. The objective of a public health approach is not …

Can We Indict A Sitting President?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

This symposium addresses the difficult question of whether a President can be criminally prosecuted while still in office or whether indictment and prosecution must await his leaving. The question is difficult because the text of the Constitution gives us some hints but no dispositive answers. At first reading, Section 3 of Article I seems to suggest that impeachment must precede any criminal prosecution: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless …

Apportioning Basis: Partial Sales, Bargain Sales And The Realization Principle, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

The Internal Revenue Code generally taxes appreciation in the value of property only on realization, defined to mean when property is sold or exchanged. In measuring gain on a sale or exchange, an allowance must be made for the return of capital, referred to as basis. Basis offsets the amount realized-that is, the price received for property-in order to calculate taxable gain.

Harm And Money: Against The Insurance Theory Of Tort Compensation, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Since the 1980s, tort damages for pain and suffering have excited hue and cry. Twenty-three states currently place statutory limitations on tort damages for pain and suffering: seven states cap damages in general tort cases; an additional sixteen states limit awards solely in medical malpractice cases. Several states also have provisions limiting damages in other, very specific types of tort cases. While some statutes have been invalidated on state constitutional grounds, others have survived judicial scrutiny. At the federal level, both the House of Representatives and the Senate have passed tort-reform bills. Although no compromise legislation has been enacted, this …

Deterrence’S Difficulty, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

We all crave simple elegance. Physicists since Einstein have been searching for a grand unified theory that will tie everything together in a simple model. Law professors have their own grand theories - law and economics's Coase Theorem and constitutional law's Originalism immediately spring to mind. Criminal law is no different, for the analogue is our faith in deterrence - the belief that increasing the penalty on an activity will mean that fewer people will perform it. This theory has much to commend it. After all, economists and shoppers have known for ages that a price increase in a good …

Ethics In Alternative Dispute Resolution: New Issues, No Answers From The Adversary Conception Of Lawyers’ Responsibilities, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The romantic days of ADR appear to be over. To the extent that proponents of ADR, like myself, were attracted to it because of its promise of flexibility, adaptability, and creativity, we now see the need for ethics, standards of practice and rules as potentially limiting and containing the promise of alternatives to rigid adversarial modes of dispute resolution. It is almost as if we thought that anyone who would engage in ADR must of necessity be a moral, good, creative, and, of course, ethical person. That we are here today is deeply ironic and yet, also necessary, as "appropriate" …

What Trina Taught Me: Reflections On Mediation, Inequality, Teaching And Life, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Trina Grillo and I trained together as mediators, met together as law teachers, commiserated together as women and civil rights activists, and laughed and cried together as friends. I shall miss her wise counsel, her sensible judgment, her measured indignation, her gentleness and her razor sharp perceptions about the world, across, through and with her gender, race, class, and human identities. I shall miss her words, her presence, her body, her corporeal essence, but she will always be with me and my students in her spirit and through her contributions to our work. In this Essay I want to reflect …

When Dispute Resolution Begets Disputes Of Its Own: Conflicts Among Dispute Professionals, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

As the processes comprising, alternative, or as we now say, "appropriate" dispute resolution mature and enter new phases of use, new issues have emerged to demonstrate that professionals engaged in providing dispute resolution services have disputes and conflicts among themselves. This Article reviews some of those conflicts and issues and suggests some resolutions for these disputes between dispute resolvers.

The Silences Of The Restatement Of The Law Governing Lawyers: Lawyering As Only Adversary Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The attempt to "restate" the law governing lawyers is a noble effort. The drafts, to date, have presented a heroic gathering, in one place, of case law and competing formulations of a variety of the professional disciplinary codes. The drafters have attempted to settle some difficult and often contentious issues regarding lawyer responsibilities to clients, to courts, to third parties, and to themselves. At the same time, this Restatement suffers from the temporal flaws of all its sisters and brothers - in its efforts to "restate" the law it looks backward, not forward, and thus will provide little guidance, at …

Ethics In Adr Representation: A Roadmap Of Critical Issues, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Much ink has been spilled in recent years on the ethics and standards that should be applied to third party neutrals acting as mediators, arbitrators or evaluators in a variety of "alternative" (or as we now say, "appropriate") dispute resolution fora. Much less ink has been spilled on what could be an even more difficult issue: Should different ethical standards be applied to lawyers who serve as "representatives" inside ADR processes than the usual rules applied to lawyers in their roles as "advocates" or "counselors" in the more traditional adversary system?

Passion's Progress: Modern Law Reform And The Provocation Defense, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Based on a systematic study of fifteen years of passion murder cases, this article concludes that reform challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bedside confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases the author has studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. …

The Armstrong Principle, The Narratives Of Takings, And Compensation Statutes, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The Takings Clause of the Fifth Amendment is famous for inspiring disagreement. More than one hundred years have passed since the Supreme Court departed from the original understanding of the clause and interpreted regulations as potentially falling within its ambit. Although the passage of time has established the principle that regulations can run afoul of the Takings Clause, the Court has been unable to offer a coherent vision of when compensation is required. Academic commentators also have failed to reach agreement on the issue, offering an enormous range of solutions to the takings question. The newest field of controversy involves …

Learning From Lincoln, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The most arresting aspect of Jack Balkin's thought-provoking paper about the consequences of fidelity to the Constitution is his use of Abraham Lincoln. Professor Balkin offers Lincoln as a prime example of someone blinded by fidelity to the Constitution. Lincoln's fidelity to the Constitution, Balkin tells us, allowed him to make a kind of peace with slavery, to think that it was "not so great an evil that it had to be abolished immediately." This is such a powerful point because, 130 years after Lincoln's assassination, we mourn him still. We mourn him because we miss his leadership, we miss …

Review Of Regulatory Takings: Law, Economics And Politics, By William A. Fischel, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Regulatory Takings: law, Economics and Politics by William A. Fischel (1997).

William Fischel's Regulatory Takings confronts one of the most difficult and significant questions in constitutional law: how should courts determine which government regulations run afoul of the takings clause of the Fifth Amendment, which requires the government to provide compensation when it takes private property? Broadly read, the clause would bar government regulations with redistributive consequences, thus rendering the modern regulatory state unconstitutional. This reading, championed by Professor Richard Epstein, has achieved great prominence in academic and political debates, but the vast preponderance of judges and …

A Law Professor’S Guide To Natural Law And Natural Rights, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Law professors nowadays mention natural law and natural rights on a regular basis, and not just in jurisprudence. Given that the founding generation universally subscribed to the idea of natural rights, this concept regularly makes a prominent appearance in discussions of constitutional law. One simply cannot avoid the concept if one is to explain Justice Samuel Chase's well-known claim in Calder v. Bull that "[t]here are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power .... An ACf of the Legislature (for I cannot call it a law) …

Was Slavery Unconstitutional Before The Thirteenth Amendment? Lysander Spooner’S Theory Of Interpretation, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, "a covenant with death and an agreement with hell." Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: "If slavery were not wrong, nothing is wrong." Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery …

Advocacy Scholarship And Affirmative Action, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

The books, The New Color Line by Paul Craig Roberts and Lawrence M. Stratton, and We Won't Go Back by Charles R. Lawrence III and Mari J. Matsuda, debate the problem of reform and overreaching in tough, advocacy-oriented prose. The first argues that racial reform was necessary but has gone too far-has even become morally self-corrupting-by its adoption of quotas and affirmative action. The second argues that racial reform was necessary and that we need more, not less affirmative action, and not only for blacks, but for women, Asian-Americans, Chicanos, poor people, and generally all "subordinated classes." Its title, therefore, …

Proposition 209, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

I have a proposition for you. It's called Proposition 209. All you have to do is stop discriminating in favor of women and racial minorities, and your perpetual problems of race and gender discrimination will finally disappear. If this Proposition sounds too good to be true ... well, you know how the saying goes. In law, as in life, the seductiveness of a proposition owes as much to its disregard of established norms as to its underlying content. Eliminate the affront to social convention, and a proposition promises about as much excitement as a routine liaison with one's spouse. But …