Law Commons^™

Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence …

A Possible Solution To The Problem Of Diminishing Tribal Sovereignty, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The capacity of Indian tribal sovereignty to protect tribes from outside encroachment and interference has steadily diminished from when the concept was first enunciated in the nineteenth century in the Marshall Indian Law Trilogy. This article assumes as a working premise that only bringing tribes into the Constitution as co-equal sovereigns will end the attrition. The article examines how this might happen, either through creative interpretation of existing constitutional text or by amending the Constitution. Each of these proposals is examined to see if it empowers tribes to manage their futures more effectively, is capacious enough to include the vast …

Fisa Reform, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Congress and the Executive Branch are poised to take up the issue of FISA reform in 2014. What has been missing from the discussion is a comprehensive view of ways in which reform could be given effect—i.e., a taxonomy of potential options. This article seeks to fill the gap. The aim is to deepen the conversation about abeyant approaches to foreign intelligence gathering, to allow fuller discussion of what a comprehensive package could contain, and to place initiatives that are currently under consideration within a broader, over-arching framework. The article begins by considering the legal underpinnings and challenges to the …

More Than A Feeling: Emotion And The First Amendment, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

First Amendment law has generally been leery of government attempts to change the marketplace of emotions—except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked. There is no judgment, whether moral or otherwise, without emotions to guide our choices. Judicial failure to grapple with this reality has produced some puzzles in the law.

Part I of this Symposium contribution examines the intersection of private law, the First Amendment, and attempts to manipulate and control emotions. Only false factual statements can defame, not mere derogatory opinions. …

Artificial Meaning, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry into the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux …

Process, Practice, And Principle: Teaching National Security Law And The Knowledge That Matters Most, James E. Baker

Georgetown Law Faculty Publications and Other Works

The meaningful application of national security law requires a commitment to substantive knowledge, good process, and a capacity to cope (and indeed thrive) under the prevailing conditions of practice. This paper describes how and why to teach these three essential elements of national security law from an academic and practitioner perspective.

The paper starts with substantive law, placing emphasis not just on the breadth of knowledge and interpretive skills required, but also on the importance of depth, perspective, theory, purpose, history, and legal values in teaching the law. Next, the paper describes the importance of timely, meaningful, and contextual process, …

Elementary Statutory Interpretation: Rethinking Legislative Intent And History, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts—legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act—their procedures. Once one …

What Would Zero Look Like? A Treaty For The Abolition Of Nuclear Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Nuclear disarmament-the comprehensive, universal, and permanent abolition of all nuclear weapons, pursuant to a verifiable, legally binding international agreement-has long been one of the most ambitious, controversial, and urgent items on the agenda for arms control. To date, however, most of the discussion of "getting to zero" has highlighted the political, military, technical and diplomatic dimensions of this complex problem, and there has been relatively little attention to the legal requirements for drafting such a novel treaty.

This Article fills that gap by offering two proposed agreements. The first, a non-legally-bindingfr amework accord, would be designedf or signature relatively soon …

Supreme Court Of The United States, October Term 2014 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Tax, Command -- Or Nudge?: Evaluating The New Regulation, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article compares for the first time the relative economic efficiency of “nudges” and other forms of behaviorally-inspired regulation against more common policy alternatives, such as taxes, subsidies, or traditional quantity regulation. Environmental economists and some legal commentators have dismissed nudge-type interventions out of hand for their failure to match the revenues and informational benefits taxes can provide. Similarly, writers in the law and economics tradition argue that fines are generally superior to non-pecuniary punishments.

Drawing on prior work in the choice-of-instruments literature, and contrary to this popular wisdom, I show that nudges may out-perform fines, other Pigouvian taxes, or …

“I’M A Lawyer, Not An Ethnographer, Jim”: Textual Poachers And Fair Use, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

Toward An Ethics Of Being Lobbied: Affirmative Obligations To Listen, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Lobbying in the U.S. today grows out of a historical legal and, eventually, Constitutional right to petition the government for redress of grievances. English kings, the English Parliament, and American colonial legislatures had incentives for not only recognizing the right but treating it fulsomely, as a means for communicating extensively with the widest possible range of those over whom kings, Parliament, and legislatures had or sought to have power. Because of drastic changes in circumstance, today's officials do not have this incentive. Financial and structural forces tend to narrow the range of people legislators and elected executives hear from. In …

Clinical Collaborations: Going Global To Advance Social Entrepreneurship, Deborah Burand, Susan R. Jones, Jonathan Ng, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

In the summer of 2012, transactional law clinics from three U.S. law schools: George Washington University; Georgetown University; and the University of Michigan launched a collaboration to serve a common client—Ashoka, a global nonprofit organization that supports close to 3,000 social entrepreneurs across 76 countries. While clinic collaborations within universities happen occasionally, clinic collaborations across universities are unusual. This essay focuses on the motivations, operations, lessons, and next steps of this cross-university, clinical collaboration aimed at advancing social entrepreneurship globally. Specifically, this essay examines why the collaboration was launched, how the collaboration is structured, what the collaboration offers clients and …

Fiscal Federalism As Risk-Sharing: The Insurance Role Of Redistributive Taxation, John R. Brooks

Georgetown Law Faculty Publications and Other Works

In addition to funding government and redistributing income, a redistributive tax-and-transfer system, and a progressive income tax in particular, provides insurance against the risk of uncertain future income. By providing for high taxes for high incomes, and low taxes, exemptions, and transfers for low incomes, a progressive income tax lowers the volatility of potential after-tax income relative to a lump-sum tax. This insurance function is distinct from the redistributive function of the system, since it provides a direct risk-mitigation benefit to the taxpayer himself, rather than simply redistributing income from one taxpayer to another.

This article analyzes the question of …

Regulatory Monopoly And Differential Pricing In The Market For Patents, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Patents are limited-term monopolies awarded to inventors to incentivize innovation. But there is another monopoly that has been largely overlooked at the heart of patent law: the monopoly of the U.S. Patent and Trademark Office (PTO) over the granting of patents. This Article addresses this topic by developing the notion of a regulatory monopoly, where a single governmental actor has the power to set prices in a regulatory area.

The Article explains how regulatory monopolists like the PTO could enhance social welfare via differential pricing-by charging regulated entities differing fees based on their willingness and ability to pay. In particular, …