Law Commons^™

Performance Anxiety: Copyright Embodied And Disembodied, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective …

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie And Exceptions, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards …

Grades Matter; Legal Writing Grades Matter Most, Jessica L. Clark

Georgetown Law Faculty Publications and Other Works

In this study of 380 students in a law school’s 2011 graduating class, the data demonstrates a strong correlation between high performance in legal writing courses and high performance in non-legal writing courses. There is also a strong correlation at the opposite end: low performers in legal writing courses are low performers in non-legal writing courses. This article provides the hard data to support the significance of writing skills by demonstrating the correlation between performance in legal writing courses and performance in other law school courses by comparing grades and Grade Point Averages (GPAs). Of course grades and GPA data …

The Dormant Second Amendment: Exploring The Rise, Fall, And Potential Resurrection Of Independent State Militias, Michael J. Golden

Georgetown Law Faculty Publications and Other Works

The term “militia” is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias’ substantial evolution over four centuries.

Historically, militia simply refers to a broad-based civic duty to protect one’s fellow citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia’s true meaning and purpose—and reinvigorating independent state militias in the United States to effect that purpose—has the potential to address states’ emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. …

“Publicness” In Contemporary Securities Regulation After The Jobs Act, Donald C. Langevoort, Robert B. Thompson

Georgetown Law Faculty Publications and Other Works

The JOBS Act of 2012 reflects the largest deregulatory change to the Securities Exchange Act of 1934 over its more than 75 year history. It contracts the coverage of those companies subject to the obligations of ‘publicness” and it introduces an “on ramp” that will permit most newly-public companies to meet a lesser set of disclosure, internal control and governance obligations for up to five years. We set these changes against a larger discussion of when a private enterprise should be forced to take on public status in securities regulation, a topic that has been entirely under theorized. We conclude …

Criminalizing Normal Adolescent Behavior In Communities Of Color: The Role Of Prosecutors In Juvenile Justice Reform, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent overrepresentation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice …

Of Law And The Revolution, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws …

Taxation, Risk, And Portfolio Choice: The Treatment Of Returns To Risk Under A Normative Income Tax, John R. Brooks

Georgetown Law Faculty Publications and Other Works

Many articles in the legal and economic literature claim that a pure Haig-Simons income tax cannot effectively tax investment income. This is because an investor can use leverage to gross up her investments in risky assets such that the increased gain (or loss) exactly offsets any income tax (or deduction) on the returns to risk-taking. This article argues, however, that while it is possible for an investor to make such portfolio shifts, she almost certainly will not because of the increased risk of doing so.

Central to any discussion of the effects of taxation on investment risk-taking is the meaning …

Book Review Of The Impossible State By Wael Hallaq, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

In his book The Impossible State, Wael Hallaq argues that the modern state is a bad fit for Muslims. This is so because the paradigm of “Islamic Governance”, developed through centuries of Islamic rule, and the modern state of the West are incompatibles if not altogether contradictory. The modern state, a European invention and an expression of the unique unfolding of Europe’s history, being premised on the deep penetration by the nation state of its population, a separation of powers between the executive, legislative and the judiciary that is always faltering, a separation between …

Judges! Stop Deferring To Class-Action Lawyers, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The idea for this article came from the author's representation of a national non-profit consumer rights organization in a federal appeal challenging a district court’s approval of a class-action settlement. The organization's appellate briefs argued that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ views, the settlement was "fair, reasonable, and adequate" (which is the standard for class-action settlement approval under Federal Rule of Civil Procedure 23(e)). The district court also deferred to the lawyers' reputations as talented and honest lawyers.

In this article, …

The Protected Profits Benchmark: Responses To Comments, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In my earlier article, I proposed the “Protected Profits Benchmark” (PPB) price standard for determining whether or not a vertically integrated monopolist is engaged in a refusal to deal or price squeeze in violation of Section 2 of the Sherman Act. The PPB would be used where market benchmarks do not exist or do not apply. Violating the PPB price involves profit-sacrifice, which suggests anticompetitive animus. When products are homogeneous, a wholesale price that violates this price standard would exclude an equally efficient entrant. As a result, there will be less competition in the downstream (output) market in which the …

Drones And The International Rule Of Law, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This essay will proceed in four parts. First, it will briefly discuss the concept of the international rule of law. Second, it will offer a short factual background on US drone strikes (to the extent that it is possible to provide factual background on a practice so shrouded in secrecy). Third, it will highlight some of the key ways in which post 9/11 US legal theories relating to the use of force challenge previously accepted concepts and seek to redefine previously well-understood terms. Fourth, it will offer brief concluding thoughts on the future of the international rule of law in …

The Risk Of International Justice: A Tribute To Aryeh Neier, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Aryeh Neier has a talent for risk and a talent for trust.

The first time I met Aryeh I was a bored child, glumly tagging along with my mother to a workshop at the New York Institute for the Humanities, where she was a fellow. I don’t think I was older than ten or eleven, but Aryeh introduced himself to me as gravely as if I were a visiting dignitary–an emissary from the far-off planet of childhood.

The second time I met Aryeh, I was twenty-five or so, and only a little bit wiser than I had been at ten. …

Regulation Of Dispute Resolution In The United States Of America: From The Formal To The Informal To The ‘Semi-Formal’, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The story of ADR in the US is one of ‘co-optation’ of what was to be a serious challenge to formalistic and legalistic approaches to legal and social problem solving and is now highly institutionalized by its more formal use in courts. At the same time, use of private forms of dispute resolution in mediation, arbitration and newly hybridised forms of dispute resolution among disputants who can choose (and afford) to leave the formal justice system (in both large commercial matters and private family matters) has resulted in claims of increased privatization of justice, with consequences for access to …

Originalism And Constitutional Construction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …

Why Jeremy Waldron Really Agrees With Me, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Herewith a response to Jeremy Waldron's review of my book, On Constitutional Disobedience. I conclude that Waldron actually agrees with all of my key claims.

Preserving Privacy In A Digital Age: Lessons Of Comparative Constitutionalism, David Cole

Georgetown Law Faculty Publications and Other Works

In the modern age, we increasingly live our lives through, and accompanied by, digital media. Virtually every transaction or communication that uses such media, as well as every move of mobile phone owners, is recorded. Computers are able to store, transmit, and analyze the data as never before, drawing on multiple sources to construct an intimate picture of our interests, contacts, travels and desires. Private data-mining services, most often used for commercial advertising purposes, can determine: what we read, listen to, and look at; where we travel to, shop, and dine; and with whom we speak or associate. Meanwhile, social …

Contract Hope And Sovereign Redemption, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Sovereign immunity has served as a partial substitute for bankruptcy protection, but it has encouraged a minority of creditors to pursue unorthodox legal remedies with spillover effects far beyond the debtor-creditor relationship. The attempt to enforce Argentina’s pari passu clause in New York is an example of such a remedy, which relies primarily on collateral damage to other creditors and market infrastructure to obtain settlement from a debtor that would not pay. The District Court decision, now on appeal before the Second Circuit, may not make holding out more attractive in future restructurings – but it would make participation less …

Nested Ethics: A Tale Of Two Cultures, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

This article suggests that a law firm that desiring to promote ethical behavior by its lawyers needs to complement efforts to establish an “ethical infrastructure” and an “ethical culture” with attention to its broader organizational culture. Specifically, research indicates that the perception that an organization treats its members fairly–their sense of organizational justice--is an important factor in prompting members’ ethical behavior.

Many law firms in the last two or three decades have devoted attention to establishing what has been called an “ethical infrastructure” that reflects appreciation of the importance of organizational policies and procedures in encouraging ethical behavior. Such measures …

The Electronic Silk Road: How The Web Binds The World In Commerce, Anupam Chander

Georgetown Law Faculty Publications and Other Works

On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world?

In this accessible book, cyber-law expert Anupam Chander provides the first thorough …

Charities In Politics: A Reappraisal, Brian Galle

Georgetown Law Faculty Publications and Other Works

Federal law significantly limits the political activities of charities, but no one really knows why. In the wake of Citizens United, the absence of any strong normative grounding for the limits may leave the rules vulnerable to constitutional challenge. This Article steps into that breach, offering a set of policy reasons to separate politics from charity. I also sketch ways in which my more-precise exposition of the rationale for the limits helps guide interpretation of the complex legal rules implementing them.

Any defense of the political limits begins with significant challenges because of a long tradition of scholarly criticism of …

Civil Rights For The Twenty-First Century: Lessons From Justice Thurgood Marshall's Race-Transcending Jurisprudence, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This Essay pays tribute to justice Thurgood Marshall's race-transcending vision of universal human dignity, and explores the importance of building cross-racial alliances to modern civil rights advocacy. justice Marshall's role as a "Race Man" is evident in much of his jurisprudence, where he fought for years to promote equal opportunity and equal justice. As an advocate for all marginalized people, justice Marshall viewed equal justice as transcending race, and this Essay suggests that the multi-racial coalition that supported President Obama aligns with Marshall's vision. The Essay evaluates the civil rights movement through the lens of Justice Marshall's equality analysis, and …

The Developmental Path Of The Lawyer, Michael J. Cedrone

Georgetown Law Faculty Publications and Other Works

My mother does not drive, and I own a towel that I cannot use-these are my reasons for studying law.

I am an integrated tapestry of elation and disappointment, risk and reward, ambiguity and conviction .. .. I discovered [through adversity] that transitional challenges were not permanent impediments to my progress, but were instead emboldening catalysts to my personal evolution and professional development.

These two stories come from admissions essays submitted by members of Georgetown University Law Center's class of 2014, recently published in the Law Center's alumni magazine. The published essays provide fascinating views into the personal experiences and …

Bond V. United States: Can The President Increase Congress's Legislative Power By Entering Into A Treaty?, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that "[t]he powers of the legislature are defined, and limited."S It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone--or a foreign government alone--can decrease Congress's power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase …

The Rhetoric Of Email In Law Practice, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

This article responds to and appears alongside an article by Professor Kirsten Davis in the December 2013 issue of the Oregon Law Review. An interesting debate has arisen among legal writing faculty with respect to the primary form of communication today between attorneys, and between attorneys and clients. Although most legal writing faculty agree that teaching traditional memoranda continues to have pedagogical benefits for first-year students, there is disagreement on how to conceptualize and teach the use of email memoranda in law practice. Professor Davis argues that to think of and label “email memoranda” as something different from traditional memoranda …

Gideon At Guantánamo, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were …

The Solicitor General And Confession Of Error, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Confessions of error have a long history. From the very beginning of the Solicitor General's position, we have had confessions of error.

All Solicitors General-it doesn't matter whether they are appointed by a Republican or a Democrat-have confessed error, roughly at the pace of two to three times per Supreme Court term.