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Articles 1 - 30 of 33
Full-Text Articles in Law
A Tribute To Jonathan Mann: Health And Human Rights In The Aids Pandemic, Lawrence O. Gostin
A Tribute To Jonathan Mann: Health And Human Rights In The Aids Pandemic, Lawrence O. Gostin
Georgetown Law Faculty Publications and Other Works
A tribute to Jonathan Mann, former head of the World Health Organization's global AIDS program and a key figure in the early fight against HIV/AIDS. The author discusses Mann's work in health and human rights, prevention of disease, and eliminating social injustice.
Temporary Protection: Towards A New Regional And Domestic Framework, Susan Martin, Andrew I. Schoenholtz, Deborah Waller Meyers
Temporary Protection: Towards A New Regional And Domestic Framework, Susan Martin, Andrew I. Schoenholtz, Deborah Waller Meyers
Georgetown Law Faculty Publications and Other Works
During the past thirty-five years, the United States has seen the direct influx of thousands of individuals leaving politically unstable countries. While some seeking entry have proved themselves to be refugees and obtained permanent protection in the United States, far more, including a large number of people fleeing civil war, natural disasters, or comparable forms of upheaval in their home countries, have failed to demonstrate that they would be targets of persecution. Yet, their return to their home countries has been complicated by the very circumstances that led to their flight: conflict, violence, and repression. Over time, the United States …
Religious Freedom As If Religion Matters: A Tribute To Justice Brennan, Stephen L. Carter
Religious Freedom As If Religion Matters: A Tribute To Justice Brennan, Stephen L. Carter
Philip A. Hart Memorial Lecture
On April 22, 1998, Professor of Law, Stephen L. Carter of Yale Law School, delivered the Georgetown Law Center’s eighteenth Annual Philip A. Hart Memorial Lecture: "Religion-Centered Free Exercise: A Tribute to Justice Brennan."
Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). Among his other books on law and politics are God’s Name in Vain: The …
The New Normativity: The Abuse Excuse And The Resurgence Of Judgment In The Criminal Law, Victoria Nourse
The New Normativity: The Abuse Excuse And The Resurgence Of Judgment In The Criminal Law, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
This article reviews Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? by James Q. Wilson (1997).
There is growing interest within the academy in reviving the "normative" in criminal law scholarship. Enter a recent book, Moral Judgment, by the distinguished criminologist James Q. Wilson. Professor Wilson's work prompts the question: What is meant by the term ''judgment"? Considering three different models--judgment as community, judgment as character, and judgment as critique--this review argues that Professor Wilson's idea of judgment both departs from the "new normativity" in existing scholarship and shows how easily ''judgment" may stand in for partial …
Three Positivisms, Robin West
Three Positivisms, Robin West
Georgetown Law Faculty Publications and Other Works
In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the …
The Stories We Must Tell: Ugandan Children And The Atrocities Of The Lord's Resistance Army, Rosa Brooks
The Stories We Must Tell: Ugandan Children And The Atrocities Of The Lord's Resistance Army, Rosa Brooks
Georgetown Law Faculty Publications and Other Works
This essay is about stories--the stories that we are told and the stories that we, in turn, tell to others. It has become a truism that we have lost our faith in master narratives and that the "real" is composed of many competing narratives, all fragmentary, contradictory, overlapping. In this article, the author discusses the problems this view poses for those of us who see ourselves as advocates and activists rather than solely--or primarily--as scholars, but who nonetheless seek to combine social activism with intellectual rigor and honesty. In particular, she discusses the dilemmas this creates for the human rights …
On Dorfman’S ‘Death And The Maiden’, David Luban
On Dorfman’S ‘Death And The Maiden’, David Luban
Georgetown Law Faculty Publications and Other Works
This Essay was originally prepared for a panel on transitional justice entitled "Justice, Amnesty, and Truth-Telling: Options for Societies in Transition," American Philosophical Association, Eastern Division, convention (Atlanta, Dec. 1996).
Can a society be repaired unless its killers, rapists, and torturers are named and exposed? Can it be repaired if its killers, rapists, and torturers are named and exposed? That is the overarching question of transitional justice; it may even be the overarching question of life in human society. Just as no relationship can survive in the complete absence of truth, no relationship can survive in the complete absence of …
Universalism, Liberal Theory, And The Problem Of Gay Marriage, Robin West
Universalism, Liberal Theory, And The Problem Of Gay Marriage, Robin West
Georgetown Law Faculty Publications and Other Works
Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" …
Toward Humanistic Theories Of Legal Justice, Robin West
Toward Humanistic Theories Of Legal Justice, Robin West
Georgetown Law Faculty Publications and Other Works
In an oft-quoted aside, Justice Holmes once remarked that when lawyers in his courtroom make appeal to justice, he stops listening: such appeals do nothing but signal that the lawyer has neither the facts nor law on his side, or worse, that he is ignorant of whatever law might be relevant.' Holmes's remark has not gone unheeded. Holmes's legacy, in part, is precisely this lapse: we don't have, or teach, a guiding theory of legal justice, nor do we have, or teach, a family of competing theories of legal justice, that might inform our work in law, at least as …
Understanding Mahon In Historical Context, William Michael Treanor
Understanding Mahon In Historical Context, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.
The author argues that at …
Jam For Justice Holmes: Reassessing The Significance Of Mahon, William Michael Treanor
Jam For Justice Holmes: Reassessing The Significance Of Mahon, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
When courts and commentators discuss Pennsylvania Coal Co. v. Mahon, they use the same word with remarkable regularity: famous. Mahon has achieved this fame in part because it was the occasion for conflict between judicial giants, and because the result seems ironic. Justice Oliver Wendell Holmes, Jr.--the great Lochner dissenter and a jurist generally considered a champion of judicial deference to legislatures in the sphere of economic decision-making--wrote the opinion striking down a Pennsylvania statute barring coal mining that could cause the surface to cave-in. Sharply dissenting from Holmes's opinion was his consistent ally on the Court, Justice Louis …
Independent Counsel And Vigorous Investigation And Prosecution, William Michael Treanor
Independent Counsel And Vigorous Investigation And Prosecution, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
This essay draws on the examples of Watergate and Iran-Contra to offer a new perspective on Independent Counsel and their ability to investigate and prosecute high-level wrongdoing. The current consensus is that an Independent Counsel, appointed by judges of the special court pursuant to the Ethics in Government Act, will invariably investigate and prosecute crimes more vigorously than a Special Prosecutor appointed by the President or the Attorney General. Watergate and Iran-Contra suggest, however, that there are institutional and political factors that make analysis of the comparative tendencies of the two types of prosecutors more complex and dependent on circumstance. …
Sovereignty By Subtraction: The Multilateral Agreement On Investment, Robert Stumberg
Sovereignty By Subtraction: The Multilateral Agreement On Investment, Robert Stumberg
Georgetown Law Faculty Publications and Other Works
The proposed Multilateral Agreement on Investment (MAl) represents a major step in the evolution of "sovereignty," which includes the power of a nation-state to govern without external controls. A panelist at the 1998 Cornell International Law journal Symposium introduced the MAl as an example of "multilateral sovereignty" to achieve commonly held goals of global economic integration. This perspective posits that the MAl is an exercise in sovereignty by subtraction, aiming to limit governing power rather than promote its joint exercise.
Its critics call the MAl a "slow motion coup d'etat," a "bill of rights for investors," a threat to sovereignty, …
Free To Choose, Randy E. Barnett
Free To Choose, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
No abstract provided.
Rules Of Engagement, Rebecca Tushnet
Rules Of Engagement, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
Why does the law treat engagement rings differently from other gifts? The answer is rooted in a history in which courts generally entertained litigation over broken engagements. As legislatures slowly abolished actions for breach of promise to marry in the early and middle decades of this century, on the grounds that such actions were inconsistent with modem understandings of love and marriage, one potential fact pattern for successful plaintiffs emerged: the case in which a man sues a woman for the return of his engagement gifts.
The history and logic of this body of law-the rules of engagement invite examination.
Intellectual Privacy And Censorship Of The Internet, Julie E. Cohen
Intellectual Privacy And Censorship Of The Internet, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
No abstract provided.
Rediscovering Fuller’S Legal Ethics, David Luban
Rediscovering Fuller’S Legal Ethics, David Luban
Georgetown Law Faculty Publications and Other Works
Lon Fuller is the greatest American philosopher to devote serious attention to the ethics of lawyers. Indeed, he is arguably the greatest philosopher since Plato to do so. I don't suggest that Fuller was a philosopher of Plato's magnitude, but it is not preposterous to mention Plato and Fuller in the same breath. Their unique affinity was that both were thinkers whose broader philosophical concerns may plausibly be said to arise from reflections on the craft of law. In Plato's case, the effort to understand forensic argument, and to analyze why opinions about justice might be persuasive without being true, …
Breard And The Federal Power To Require Compliance With Icj Orders Of Provisional Measures, Carlos Manuel Vázquez
Breard And The Federal Power To Require Compliance With Icj Orders Of Provisional Measures, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
Among the puzzling aspects of the Breard episode was the Clinton administration's claim that the decision whether or not to comply with the Order of the International Court of Justice requiring the postponement of Breard's execution lay exclusively in the hands of the Governor of Virginia. The ICJ's Order provided that"[t]he United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings." The Clinton administration argued that the Order was not binding, but it also took the position that, even if the order were binding, …
Night And Day: Coeur D’Alene, Breard, And The Unraveling Of The Prospective-Retrospective Distinction In Eleventh Amendment Doctrine, Carlos Manuel Vázquez
Night And Day: Coeur D’Alene, Breard, And The Unraveling Of The Prospective-Retrospective Distinction In Eleventh Amendment Doctrine, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The Supreme Court's decision in Edelman v. Jordan has been read to establish a distinction between suits seeking prospective relief from a state official's violation of federal law (which are not barred by the Eleventh Amendment under Ex parte Young) and suits seeking retrospective relief from the state (which are barred by the Eleventh Amendment, even if the officer is the defendant). Commentators and the lower courts have long had difficulty understanding and applying the distinction. Until recently, the principal effect of the Edelman line of cases has been to bar suits seeking damages and similar monetary relief from …
Unaccompanied Children In I.N.S. Detention, Rosa Ehrenreich Brooks
Unaccompanied Children In I.N.S. Detention, Rosa Ehrenreich Brooks
Georgetown Law Faculty Publications and Other Works
It is important to note that children who end up in INS detention centers in the United States are not criminal detainees, but rather, administrative detainees. That is, they are not being held because they are accused or convicted of crimes. They are being held for two reasons only. First, the INS holds them in order to ensure their presence at immigration proceedings. They fear that if they let a child out, into foster care for instance, that child might not appear at any subsequent hearings or proceedings. Second, the government is legally required to look after these children in …
Translation Without Fidelity: A Response To Richard Epstein’S Fidelity Without Translation, William Michael Treanor
Translation Without Fidelity: A Response To Richard Epstein’S Fidelity Without Translation, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
This article is a response to Fidelity Without Translation by Richard Epstein (1997).
Explaining why a body of work is influential is inevitably a complex matter, but part of the success of Professor Epstein’s writings undoubtedly stems from their grounding in the original understanding of the Constitution. He has claimed the mantle of the framers, and that claim gives his reading of the takings clause a deep resonance it would not otherwise have.
Explicitly rejecting Epstein’s reading of the clause and the history that lay behind its adoption, the author has previously advanced his own view of the original understanding …
The Summary Affirmance Proposal Of The Board Of Immigration Appeals, Philip G. Schrag
The Summary Affirmance Proposal Of The Board Of Immigration Appeals, Philip G. Schrag
Georgetown Law Faculty Publications and Other Works
The Board of Immigration Appeals is on the verge of making a tragic mistake, trading away a key element of fair adjudication--the written opinion--for the sake of what it hopes will be greater administrative efficiency. The cost of eliminating written adjudication is too great, and the Board has given no indication that it has sufficiently canvassed less drastic alternatives.
The Board of Immigration Appeals (the "Board") is the primary appellate body for immigration law. The "staple" of its work is to decide appeals from decisions of Immigration Judges in removal proceedings, though it also hears appeals in several other categories, …
Federal Regulation Of Tobacco Products And Products That Treat Tobacco Dependence: Are The Playing Fields Level?, Joseph A. Page
Federal Regulation Of Tobacco Products And Products That Treat Tobacco Dependence: Are The Playing Fields Level?, Joseph A. Page
Georgetown Law Faculty Publications and Other Works
Company A is thinking about launching a traditional tobacco product, perhaps a cigarette or a smokeless tobacco confection, with a new ingredient, ingredient level, or ingredient mix that in the past has never been sold. Company B contemplates putting on the market an innovative medication, medical device, or dietary supplement intended to help consumers to free themselves from physical dependence on tobacco products. Company C ponders the possibility of introducing a smoking product whose novelty derives from express or implied marketing claims that the product will decrease or perhaps even eliminate physical dependence on tobacco, or reduce other risks associated …
The Original Understanding Of The Takings Clause, William Michael Treanor
The Original Understanding Of The Takings Clause, William Michael Treanor
Georgetown Environmental Law & Policy Institute Papers & Reports
The champions of the property rights movement claim that they are fighting to restore the original understanding of the Takings Clause of the Fifth Amendment. They invoke James Madison and other founding fathers as support for proposed statutes that require the federal government to pay property owners when it prevents them from harming the environment or jeopardizing the survival of endangered species. Wetlands regulation, it is often said, "takes" property by diminishing its value, and the founders adopted the Takings Clause to ensure that, when government regulations diminished the value of property, the owner would receive compensation. Increasing numbers of …
Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen
Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
Part I of this Article describes the economic models now proffered as the basis for defining rights in digital works, and explores their striking resemblance to the system of social ordering described and advanced in the Supreme Court's Lochner-era decisions. The ghost of Lochner is not invoked lightly, nor with intent to belittle. Lochner represented a particular ideal of social ordering, premised on a seamless convergence of the private-law institutions of property and contract to provide a zone of legal insulation for market outcomes. In the physical world, that vision has long been compromised by evidence of market failures …
The Summary Affirmance Proposal Of The Board Of Immigration Appeals, Philip G. Schrag
The Summary Affirmance Proposal Of The Board Of Immigration Appeals, Philip G. Schrag
Georgetown Law Faculty Publications and Other Works
The Board of Immigration Appeals is on the verge of making a tragic mistake, trading away a key element of fair adjudication-the written opinion-for the sake of what it hopes will be greater administrative efficiency. The cost of eliminating written adjudication is too great, and the Board has given no indication that it has sufficiently canvassed less drastic alternatives.
The Board of Immigration Appeals (the "Board") is the primary appellate body for immigration law. The "staple" of its work is to decide appeals from decisions of Immigration Judges in removal proceedings, though it also hears appeals in several other categories, …
Judges As Advicegivers, Neal K. Katyal
Judges As Advicegivers, Neal K. Katyal
Georgetown Law Faculty Publications and Other Works
Since Alexander Bickel, scholars have understood the Supreme Court to have a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. Professor Katyal contends that the Court wields a fourth power: advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and this article seeks to provide a normative justification for the practice. Professor Katyal breaks down advicegiving into several categories and explains how advice, when given to the political branches, …
Toward A Theory Of Reciprocal Responsibility Between Clients And Lawyers: A Comment On David Wilkins’ Do Clients Have Ethical Obligations To Lawyers? Some Lessons From The Diversity Wars, Carrie Menkel-Meadow
Toward A Theory Of Reciprocal Responsibility Between Clients And Lawyers: A Comment On David Wilkins’ Do Clients Have Ethical Obligations To Lawyers? Some Lessons From The Diversity Wars, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
On my plane flight to attend the American Association of Law Schools meeting at which Professor David Wilkins presented his paper, Do Clients Have Ethical Obligations to Lawyers? Some Lessons From the Diversity Wars, the pilot requested passengers to "assist the flight attendants in their principal duty of providing safety to all passengers," following a recent incident with mid-flight turbulence in which one person died and several were injured. The pilot reminded us that "service" was only a secondary function of the flight attendants, with their principal duty being to ensure that all of us traveled and arrived safely, …
Taking The Mass Out Of Mass Torts: Reflections Of A Dalkon Shield Arbitrator On Alternative Dispute Resolution, Judging, Neutrality, Gender, And Process, Carrie Menkel-Meadow
Taking The Mass Out Of Mass Torts: Reflections Of A Dalkon Shield Arbitrator On Alternative Dispute Resolution, Judging, Neutrality, Gender, And Process, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
Life in the modem and post-modem world has changed our understanding of many traditional legal matters. Although many died from plagues, wars, and some shipping and agricultural accidents in the years which preceded the Industrial Revolution and modem breakthroughs in medicine, the twentieth century has given rise to "group" injury and death -it unprecedented levels, all as we march toward growth, progress, and greater goods for greater numbers. Mass progress has resulted in mass injury, which in turn has transformed individualized justice into mass justice. Whether structured as large class actions or as thousands of individual cases dealing with the …
Skeptical Scrutiny Of Plenary Power: Judicial And Executive Branch Decision Making In Miller V Albright, Cornelia T. Pillard, T. Alexander Aleinikoff
Skeptical Scrutiny Of Plenary Power: Judicial And Executive Branch Decision Making In Miller V Albright, Cornelia T. Pillard, T. Alexander Aleinikoff
Georgetown Law Faculty Publications and Other Works
In 1996, just a few months after the United States successfully urged the Supreme Court in United States v. Virginia to invalidate as sex-discriminatory the male-only admissions policy at the Virginia Military Institute, the District of Columbia Circuit in Miller v. Albright upheld a federal law that used an express, sex-based distinction. Section 309(a) of the Immigration and Nationality Act (INA) makes it harder for male U.S. citizens than for female citizens to convey their citizenship to their children if those children were born abroad out of wedlock and the other parent was not a U.S. citizen. Notwithstanding the United …