Law Commons^™

The Lost Cause Of Free Speech, Mary Anne Franks

Articles

No abstract provided.

On The Meaning Of Color And The End Of White(Ness), William J. Aceves

Faculty Scholarship

This Article explores the history of the term “people of color” and its current status in a country struggling to overcome its racist origins. The murders of Trayvon Martin, Michael Brown, George Floyd, Breonna Taylor, and so many other victims of state violence have generated profound anger, calls for action, and demands for dialogue. It is undoubtedly simplistic to assert that words matter. But accurate descriptions are essential for honest conversations, and words convey meanings beyond their syntax. In discussions about race and racial identity, the term “people of color” is routinely used as the antipode to the white community. …

Courts In Conversation, Thomas P. Schmidt

Faculty Scholarship

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that …

Joint Authorship And Dramatic Works: A Critical History, Mary Lafrance

Scholarly Works

This Article examines the evolution of copyright law pertaining to collaborative authorship and finds that much of the core legal doctrine in this area arose from disputes involving dramatic works. This fresh look at theatrical collaborations reveals a rich history that calls into question the modem judicial presumption that dramatic writing is the product of individual genius. Examining the history of Anglo- American law's response to collaboration in dramatic works offers valuable insight into the development of multiple concepts related to authorship-in particular, the rules governing derivative works, works made for hire, and joint works. It also demonstrates that the …

Rennard Strickland: Legal Historian And Leader, Charles Wilkinson

Publications

No abstract provided.

The Invention Of Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The long Progressive Era, from 1900 to 1930, was the Golden Age of antitrust theory, if not of enforcement. During that period courts and Progressive scholars developed nearly all of the tools that we use to this day to assess anticompetitive practices under the federal antitrust laws. In a very real sense we can say that this group of people invented antitrust law. The principal contributions the Progressives made to antitrust policy were (1) partial equilibrium analysis, which became the basis for concerns about economic concentration, the distinction between short- and long-run analysis, and later provided the foundation for the …

Antitrust Error Costs, Herbert J. Hovenkamp

All Faculty Scholarship

The idea that consideration of error costs should inform judgments about actions with uncertain consequences is well established. When we act on imperfect information, we consider not only the probability of an event, but also the expected costs of making an error. In 1984 Frank Easterbrook used this idea to rationalize an anti-enforcement bias in antitrust, reasoning that markets are likely to correct monopoly in a relatively short time while judicial errors are likely to persist. As a result, false positives (recognizing a problem when there is none) are more costly than false negatives. While the problem of error cost …

Equity's Federalism, Kellen R. Funk

Faculty Scholarship

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at …

Keeping Our Republic, Ashlee A. Paxton-Turner

Faculty Scholarship

No abstract provided.

Chapter Eight - Technology And The Law: The Automobile (By James Willard Hurst), Bj Ard, William J. Novak

Articles

In this chapter we are going to talk about some of the automobile effects that it has had. Upon the law, and some of the effects that the law has had upon the automobile. We could undoubtedly open up some worthwhile lines of thought, if we talked about the automobile in relation to, certain brooder problems of which it is a part: for example, the effects of the internal combustion the growth engine, or of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of …

Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak

Articles

As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities …

A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

Law School News: Rwu Law Remembers Sarah Weddington 12/30/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Undersea Cables: The Ultimate Geopolitical Chokepoint, Bert Chapman

FORCES Initiative: Strategy, Security, and Social Systems

This work provides historical and contemporary overviews of this critical geopolitical problem, describes the policy actors addressing this in the U.S. and selected other countries, and provides maps and information on many undersea cable work routes. These cables are chokepoints with one dictionary defining chokepoints as “a strategic narrow route providing passage through or to another region."

Rearguard Or Vanguard? A New Look At Canada’S Constitutional Act Of 1791, Philip Girard

Articles & Book Chapters

The Constitutional Act 1791, which provided representative governments to Upper and Lower Canada, has often been regarded as a reactionary document. Here, a comparison with the constitutions of the eastern colonies of British North America as well as the pre-revolutionary constitutions of the Thirteen Colonies reveals a variety of ways in which the 1791 Act was more liberal and more committed to the popular element of the constitution than its comparators. The significance of the statutory form of the 1791 Act is emphasised and contrasted with the much less secure position of the popular element under prerogative constitutions. Significant concessions …

Media Paratext And Constitutional Interpretation, Benjamin J. Priester

Faculty Articles

In the fields of media studies and fan studies, the concept of paratext is an analytical paradigm for understanding how audiences consume and interpret media texts, such as a novel or movie. Amid today's media-rich society, it is all but impossible to encounter a media text in isolation. Rather, we also invariably interact with a wide variety of associated paratexts, from official materials like trailers or marketing to unofficial materials like reviews or fan reactions, which play a role in shaping our interpretation of the core media text. This concept of media paratext provides a compelling analogy for constitutional interpretation. …

Addressing The Divisions In Antitrust Policy, Herbert J. Hovenkamp

All Faculty Scholarship

This is the text of an interview conducted in writing by Professor A. Douglas Melamed, Stanford Law School.

Law And Empire, 1500–1812, Philip Girard, Catherine Evans

Articles & Book Chapters

When we think about law and empire, it is most accurate, if inelegant, to pluralize everything: empires, colonies, peoples, cultures, sources of law. The transnational turn has dramatic implications for the history of law in the Americas. Most obviously, especially for the period from 1500 to 1812, scholars have become increasingly sensitive to the role of European empires – including the British, French, and Spanish – in shaping America’s legal cultures. Groups of colonists from across Europe brought a multiplicity of understandings of law and social order with them, encountering Indigenous nations with their own rich legal traditions. Colonists used …

An Uncomfortable Truth: Indigenous Communities And Law In New England: Roger Williams University Law Review Symposium 10/22/2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Covid-19 Vaccine Mandates—A Wider Freedom, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

President Biden has required COVID-19 vaccinations across much of the US workforce, reaching nearly 100 million workers. Opponents call it unconstitutional, a violation of personal freedom, and even “un-American.” The truth is that vaccine mandates are lawful and deeply entrenched in US history and values. They constitute a “wider freedom” so that everyone in society can feel safer where they work, learn, worship, and live.

Susan Bartie, Free Hands And Minds: Pioneering Australian Legal Scholars, John Henry Schlegel

Book Reviews

No abstract provided.

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations …

The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson

Articles

Since the enactment of the first federal securities statute in 1933, securities law has illustrated key shifts in the Supreme Court’s jurisprudence. During the New Deal, the Court’s securities law decisions shifted almost overnight from open hostility toward the newly-expanded administrative state to broad deference to agency expertise. In the 1940s, securities cases helped build the legal foundation for a broadly enabling administrative law. The 1960s saw the Warren Court creating new implied rights of action in securities law illustrative of the Court’s approach to statutes generally. The stage seemed set for the rise of “federal corporate law.” The Court …

Appreciating The Overlooked Contributions Of The New Harvard School, Christopher S. Yoo

All Faculty Scholarship

My colleague, Herbert Hovenkamp, is almost universally recognized as the most cited and the most authoritative US antitrust scholar. Among his many honors, his status as the senior author of the authoritative Areeda and Hovenkamp treatise makes him the unquestioned leader of the New Harvard School, which has long served as the bellwether for how courts are likely to resolve emerging issues in modern antitrust doctrine. Unfortunately, its defining tenets and its positions on emerging issues remain surprisingly obscure. My contribution to this festschrift explores the core commitments that distinguish the New Harvard School from other approaches to antitrust. It …

Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford

Scholarly Works

This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should "do something" about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes, …

Antitrust Harm And Causation, Herbert J. Hovenkamp

All Faculty Scholarship

How should plaintiffs show harm from antitrust violations? The inquiry naturally breaks into two issues: first, what is the nature of the harm? and second, what does proof of causation require? The best criterion for assessing harm is likely or reasonably anticipated output effects. Antitrust’s goal should be output as high as is consistent with sustainable competition.

The standard for proof of causation then depends on two things: the identity of the enforcer and the remedy that the plaintiff is seeking. It does not necessarily depend on which antitrust statute the plaintiff is seeking to enforce. For public agencies, enforcement …

Law School News: Rwu Law Introduces Required Course On Race And The Law 06/28/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Our Imperial Federal Courts, Matthew J. Steilen

Journal Articles

This essay is a response to Christian R. Burset, Advisory Opinions and the Problem of Legal Authority, 74VAND.L.REV.621(2021).

“The article is significant for the archival work alone. It is useful, as well, for the impressive synthesis of the existing secondary literature, collected in the footnotes, which makes a convenient reading list for us mere mortals. The argument of the article is ambitious. As the Table of Contents suggests, its structure is complex: the author asks us to visit three different jurisdictions (two British and one American, each thousands of miles apart), in three different decades, in three different political and …

We Have The Land Titles: Indigenous Litigants And Privatization Of Resguardos In Colombia, 1870s-1940s, Gloria Lopera

FIU Electronic Theses and Dissertations

Pressures for the privatization of indigenous lands accompanied the making of nation-states in post-colonial Latin America and boosted the natives' quest for colonial legal documents suitable to prove their rights over indigenous communal landholdings (known in Colombia as "resguardos"). This dissertation compares the experiences of two communities - San Lorenzo and Cañamomo-Lomaprieta - engaging with the law and producing legal and historical evidence to respond to the privatization of their resguardos. These communities inhabit the municipalities of Riosucio and Supía (Caldas) in the Western Colombian Andes. While the study explores the genesis of San Lorenzo's and Cañamomo-Lomaprieta's …