Law Commons^™

A Larger War On Terror?, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Brits Do It Better, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

From Snail Mail To E-Mail: The Traditional Legal Memorandum In The Twenty-First Century, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

Traditional legal memoranda have been used to teach objective analysis since the inception of legal writing programs in the 1970's. The continued use of these memoranda in the legal writing classroom leads law students to believe that traditional memoranda are still the primary form of communication between attorney and client. A 2006 survey of Georgetown University Law Center graduates, however, suggests that the traditional legal memorandum is all but dead in law practice. Seventy-five percent of the graduates surveyed said they write no more than three traditional memoranda per year. Instead, these graduates are more likely to communicate with clients …

Privacy, Visibility, Transparency, And Exposure, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This essay considers the relationship between privacy and visibility in the networked information age. Visibility is an important determinant of harm to privacy, but a persistent tendency to conceptualize privacy harms and expectations in terms of visibility has created two problems. First, focusing on visibility diminishes the salience and obscures the operation of nonvisual mechanisms designed to render individual identity, behavior, and preferences transparent to third parties. The metaphoric mapping to visibility suggests that surveillance is simply passive observation, rather than the active production of categories, narratives, and, norms. Second, even a broader conception of privacy harms as a function …

Kurt Lash's Majoritarian Difficulty: A Response To A Textual-Historical Theory Of The Ninth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay the author explains why Lash’s majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the …

Incorporation And Originalist Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question--the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."

The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the …

Are We Dead Yet? The Lies We Tell To Keep Moving Forward Without Feeling, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

Some days it seems easier to live with innocence, as though this afternoon's traffic and tonight's dinner were the big challenges of our lives, as if we could keep turning the key in the ignition and burning the incandescent bulb in the kitchen, magically removed from a grid that involves coal and oil, mercury poisoning, and pipelines, and colonialism and war.

Charles Lawrence wrote an article to prove to himself that he was not crazy. To tired colleagues who were saying, "There are no racists here," an adult variant of "Wasn't me," he chose a response that ruptured. In the …

Less Safe, Less Free: A Progress Report On The War On Terror: Address To The Terrorism & Justice Conference At The University Of Central Missouri, David Cole

Georgetown Law Faculty Publications and Other Works

The Bush Administration since 9-11 has adopted a strategy, which in some sense depends upon the ability to predict with incredible accuracy at what will happen in the future. It was given its name by the U.S. Attorney General during the first Bush Administration, Missouri’s John Ashcroft, who argued that what we need in the wake of 9-11 is a “preventive paradigm.” The argument is understandable: when facing foes who are willing to commit suicide in order to inflict mass casualties on innocent civilians, it is not enough to bring them to justice after the fact. The perpetrators are dead--and …

Introduction To Keynote Address: A Community Of Reason And Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Introduction to the Keynote Address: A Community of Reason and Rights, delivered on October 4, 2007 at Fordham University School of Law.

What Yoder Wrought: Religious Disparagement, Parental Alienation And The Best Interests Of The Child, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

Despite its grounding in a specific and peculiar set of facts, the strict scrutiny mandate of Wisconsin v. Yoder (decided in 1972) has changed the constitutional landscape of custody cases - - and it has done so in a way that is unsound both as a matter of law and policy. Following Yoder, most courts require a showing of harm to the child, or a substantial threat of harm to the child, before placing any restrictions on exposure to a parent’s religious beliefs and practices. This harm standard leaves children in an untenable position when parents compete for “spiritual custody,” …

The Twenty Year Test: Principles For An Enduring Counterterrorism Legal Architecture, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental …

Sight, Sound And Meaning: Teaching Intellectual Property With Audiovisual Materials, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This article addresses the author's experience using audiovisual materials from the Georgetown Intellectual Property Teaching Resources database. She used audiovisual materials extensively in class to allow students to see the subject matter of the cases rather than just reading verbal descriptions and enable them to apply the principles they read about to new, concrete examples. Many students in IP courses have special interests in music, film, or the visual arts, and the database allows her--and other teachers--to present materials that engage them. She found that students are more willing to speak up in class when they can see or hear …

Post-Conflict Rule Of Law Building: The Need For A Multi-Layered, Synergistic Approach, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

In recent years, considerable blood, sweat, and treasure have been devoted to building the rule of law in the wake of armed conflicts and military interventions in many parts of the world. From Afghanistan to Iraq, Kosovo to East Timor, and Sierra Leone to Haiti and elsewhere, international interveners and local leaders have struggled to address both security and humanitarian challenges in societies seeking to overcome a legacy of violent conflict

National And Global Health Law: A Scholarly Examination Of The Most Pressing Health Hazards, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The health of individuals, families, and communities has deep, intuitive meaning. So much of what we aspire to be as individuals or as members of society relies on health. Our shared intuitions about the value of health manifest themselves in public and political concerns. The media widely reports threats to the public's health, such as a traveler with multi-drug resistant tuberculosis, E-coli from contaminated spinach, miners' deaths, unsafe children's toys, and dangerous pharmaceuticals. Election years predictably spur new, or refashioned, proposals for health care reform. And there remain enduring, intractable health hazards, such as tobacco, obesity, motor vehicle crashes, and …

Tax Fairness, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article argues that, contrary to the consensus of economists and many legal scholars, the norm of "horizontal equity" in taxation has independent meaning as a default rule in favor of existing arrangements. Although it has long been said, and widely thought, that tax should be fair in its dealings with individuals who are situated similarly to one another, no one has been able to say convincingly just what that fairness comprises. As a result, the learned referees in the last major dispute over the significance of horizontal equity judged that fairness's critic had decidedly won the day. Since then, …

Domestic Bonds, Credit Derivatives, And The Next Transformation Of Sovereign Debt, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Not long ago, financial markets in most poor and middle-income countries were shallow to nonexistent, and closed to foreigners. Governments often had to rely on risky borrowing abroad; the private sector had even fewer options. But between 1995 and 2005, domestic debt in the emerging markets grew from $1 trillion to $4 trillion. In Mexico, domestic debt went from just over 20% of the total government debt stock in 1995 to nearly 80% in 2007. Foreign and local investors are buying. Over the same period, derivative contracts to transfer emerging market credit risk surpassed the market capitalization of the benchmark …

"Anything You Say May Be Used Against You": A Proposed Seminar On The Lawyer’S Duty To Warn Of Confidentiality’S Limits In Today's Post-Enron World, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In light of recent developments, the confidence that one's communications with a lawyer will remain sacrosanct today may be badly misplaced. This raises important questions concerning the duty of lawyers: When, to what extent, and in what detail, does an attorney communicating with someone who may expect confidentiality, have a duty to explain in advance the circumstances under which the information gained may subsequently be revealed pursuant to these or other confidentiality loopholes? Will the interviewee “clam up” in the face of such Miranda-like warnings? If so, what does this do to the premise of Upjohn and the Model Rule …

The Last Straw: The Department Of Justice's Privilege Waiver Policy And The Death Of Adversarial Justice In Criminal Investigations Of Corporations, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The white-collar criminal defense bar has never been reticent to complain about U.S. Department of Justice (DOJ) policies that threaten its clients or the viability of its practice. But nothing--at least in the author's twenty-plus years of involvement in white-collar issues--has consumed the bar as much as the threats posed to the corporate attorney-client privilege and work-product doctrine. While commentators have identified a variety of assaults on these protections, the bar is most vocally outraged by the DOJ policy, pursuant to which, it charges, federal prosecutors regularly insist that corporations waive these protections to secure cooperation credit, declination of criminal …

Does Doj's Privilege Waiver Policy Threaten The Rationales Underlying The Attorney-Client Privilege And Work Product Doctrine? A Preliminary "No", Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

According to white-collar defense practitioners, the demise of the corporate attorney-client privilege and work product doctrine is imminent. While a variety of assaults have been identified, by far the most oft-cited culprit is the U.S. Department of Justice (DOJ), whose prosecutors, it is charged, have routinely insisted that corporations waive these protections to secure cooperation credit and declination of criminal action against the corporate actor and/or consideration at sentencing. DOJ has, by and large, vigorously defended its policies in this regard. Congress now threatens to inject itself into the debate: legislation entitled the "Attorney-Client Privilege Protection Act" has been introduced …

Intergenerational Equity In Fiscal Policy Reform, Michael Doran

Georgetown Law Faculty Publications and Other Works

This article argues that the idea of evaluating government fiscal policy along the dimension of intergenerational equity is largely misguided. In sharp contrast to the intragenerational distribution of wealth--where government policy plays an active and commanding role in transferring resources between and among different groups--the intergenerational distribution of wealth is determined mainly by decisions of private actors that fall outside government policy and that may blunt or even reverse the distributional effects of government policy. Unless a far greater share of intergenerational transfers is brought within the scope of government fiscal policy through such unlikely measures as the confiscatory taxation …

Treaties As Law Of The Land: The Supremacy Clause And The Judicial Enforcement Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international …

Moral Conflict And Conflicting Liberties, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

The authors' goal in this chapter is to surface some of the commonalities between belief liberty and identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. She first wants to make transparent the conflict that she believes exists between laws intended to protect the liberty of lesbian, gay, bisexual, and transgender (LGBT) people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. The author believes those who advocate for LGBT equality have downplayed the impact of such …

The Ada Amendments Act Of 2008, Chai R. Feldblum, Kevin Barry, Emily A. Benfer

Georgetown Law Faculty Publications and Other Works

The goal of the Americans with Disabilities Act (ADA) was to create a civil rights law protecting people with disabilities from discrimination on the basis of their disabilities. Disability rights advocates in 1990 were victorious in their efforts to open doors for people with disabilities and to change the country's outlook and acceptance of people with disabilities. These advocates believed that the terms of the ADA, based as they were on Section 504 of the Rehabilitation Act, combined with the legislative history of the ADA, would provide clear instructions to the courts that the ADA was intended to provide broad …

Unconscious Racism Revisited: Reflections On The Impact And Origins Of "The Id, The Ego, And Equal Protection", Charles R. Lawrence Iii

Georgetown Law Faculty Publications and Other Works

Twenty years ago, Professor Charles Lawrence wrote “The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism.” This article is considered a foundational document of Critical Race Theory and is one of the most influential and widely cited law review articles. The article argued that the purposeful intent requirement found in Supreme Court equal protection doctrine and in the Court’s interpretation of antidiscrimination laws disserved the value of equal citizenship expressed in those laws because many forms of racial bias are unconscious. Professor Lawrence suggested that rather than look for discriminatory motive, the Court should examine the cultural meaning …

Torture And The Professions, David Luban

Georgetown Law Faculty Publications and Other Works

This paper examines the roles played by the learned professions in torture and cruel, inhuman, or degrading treatment carried out by the United States in the war on terrorism. It takes lawyers, physicians, psychologists, and anthropologists as its case studies. It originated as the keynote speech at the Association of Practical and Professional Ethics annual meeting in 2007.

The Golden Mean Between Kurt & Dan: A Moderate Reading Of The Ninth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In these remarks given at the Drake Constitutional Law Center Symposium, Professor Randy Barnett addresses his disagreement with Dan Farber's view of the Ninth Amendment in his new book and with Kurt Lash's view of the Ninth Amendment in his recent articles, and he asks why the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment have been overlooked.

The author explains that his view is closer to Farber's; however, he asserts that the Ninth Amendment protects all fundamental liberties—not just some. He asserts that Lash incorrectly views the Ninth Amendment as protecting state majoritarianism rather than …

Government As Educator: A New Understanding Of First Amendment Protection Of Academic Freedom And Governance, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that statements made pursuant to the official duties of public employees are not shielded by the First Amendment from employer discipline, despite a warning from three dissenting justices that the holding could "imperil First Amendment protection of academic freedom in public college and universities." This article responds to the invitation in Garcetti to identify constitutional interests that support academic freedom and that are not fully accounted for by public-employee speech jurisprudence. It also argues that, contrary to common understanding, academic freedom is about more than faculty research and …

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition--and international law generally--poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question of torture within …

Time To Start Over On Deferred Compensation, Michael Doran

Georgetown Law Faculty Publications and Other Works

Writing good regulations--"good" in the sense of promoting the public interest--always presents challenges. Regulators must hit a small but important target where private conduct is brought within appropriate government control, but unnecessary compliance burdens and other deadweight costs are minimized. Even if they see the government's objectives clearly, regulators often have only a limited understanding of the underlying private activities. Moreover, regulators may be unaware of how their rules disrupt or distort those activities in socially harmful ways.

Regulators occasionally hit the target exactly. More often, they miss--though not by an intolerably wide margin (good enough for government work, as …

After The Reasonable Man: Getting Over The Subjectivity Objectivity Question, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular …