Law Commons^™

Orphaned Rules In The Administrative State: The Fairness Doctrine And Other Orphaned Progeny Of Interactive Deregulation, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The recent trend toward deregulation has revealed a fundamental weakness in our administrative state. Agencies that have decided to eliminate agency-created rules that no longer serve their statutory mandate are effectively prevented from doing so by pressure from members of Congress who want to preserve the rule but are unable or unwilling to enact it as law.

International Law’S Contributions To Peace, Barry E. Carter

Georgetown Law Faculty Publications and Other Works

The progressive development of international law has helped move the world forward in a wide variety of ways along the paths to peace. It is a story that is often not understood or appreciated.

Looking For A Better Way: The Sanction Laws Of Key U.S. Allies, Barry E. Carter

Georgetown Law Faculty Publications and Other Works

When it comes to imposing economic sanctions for foreign policy purposes, the Chief Executives of the United Kingdom, West Germany, andJapan have broad authority to control their respective countries' exports, imports, and private financial transactions. This authority differs from that of the U.S. President who, under present U.S. law, has wide discretion to cut off almost all exports, but has only limited control over imports and over foreign loans by private U.S. banks. This is in the absence of a declared national emergency, where the President has sweeping powers.

Causation In Torts, Crimes, And Moral Philosophy: A Reply To Professor Thomson, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Professor Judith Jarvis Thomson's provocative article, 'The Decline of Cause,' focuses on the diminishing importance of causation in law and moral philosophy. In this reply, I suggest answers to some of the questions Professor Thomson raises.

Professor Thomson's article revolves around various forms of a classic dilemma: two persons take equal care but, through chance, their actions produce different results. Does the outcome of their actions matter in a moral assessment of those actions? Professor Thomson first sets out what the styles as the Kantian and 'moral sophisticates" position that the outcome of an act does not and should not …

Adjudication Is Not Interpretation: Some Reservations About The Law-As-Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation -- that an adjudicative act is an interpretive act -- more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century.

In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, …

Asbestos And The Dalkon Shield: Corporate America On Trial, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

Asbestos and the Dalkon Shield intrauterine device share a number of unhappy distinctions. Both products have exacted a terrible human toll. Damage suits seeking recovery for harm linked to both have put considerable strain on the judicial system. Corporate decisions made in the course of marketing both have been deemed reprehensible. Manufacturers of both have sought refuge in bankruptcy. And both have provided the grist for hard-hitting books by veteran investigative journalists.

Paul Brodeur's Outrageous Misconduct: The Asbestos Industry on Trial returns a harsh verdict against the Manville Corporation and others directly and indirectly involved in the production of what …

Squaring Undisclosed Agency Law With Contract Theory, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The law of undisclosed agency has long been considered an anomaly of contract theory. While few disapprove of its content, this body of law does not appear to square with our theoretical understanding of contractual obligation. In this Article, Professor Barnett applies a "consent theory of contract" to explain and critically evaluate the law of undisclosed agency. After showing why standard contract theories have been unable to explain the established doctrine in this area, he analyzes the nexus of obligations arising from the consensual "triangular flow of rights" among the three parties to the paradigm undisclosed agency relationship. He then …

Secret Rights, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Since the seventeenth century, when the concept of rights first came into vogue, philosophers and social theorists have struggled to articulate an acceptable theory of individual rights, but their efforts remain largely unsatisfactory. Without exception, each effort falters when it attempts to describe the contours of the rights that are entitled to protection or to explain the ways in which competing claims of right should interact. This is true whether a theorist seeks to define a right through reference to its substantive content or through reference to the procedures by which the right can be recognized. Given the collective stature …

On The Indeterminacy Crisis: Critiquing Critical Dogma, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Critical legal scholarship challenges the liberal claim that modern western societies are characterized by "the rule of law." The liberal conception of the rule of law, critical scholars contend, serves to mystify and legitimate the legal system and thereby obscure the real issues behind individual cases as well as the real nature of the legal system. Frequently, the claim that legal rules are indeterminate is the starting point for such a critique of the rule of law. What I call the indeterminacy thesis goes roughly like this: the existing body of legal doctrines-statutes, administrative regulations, and court decisions-permits a judge …

The Future Of Public Health Law, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Developments in medicine and constitutional law dictate modification of public health legislation in the United States. Traditionally overlooked by legislators, present public health laws provide inadequate decision-making criteria and inappropriate procedures for dealing with issues. Revised legislation should provide health care officials and agencies with the tools to balance individual rights against public health necessities. This article makes four recommendations for legislative reform: (1) remove artificial legislative distinction between venereal and other communicable diseases; (2) provide criteria defining "public health necessity" to limit discretionary exercise of police power by health officials; (3) provide strong confidentiality protections in the collection and …

Foreword: Public Health & The Law—A Symposium Dedicated To Professor William J. Curran, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This essay serves as the foreword to Public Health & the Law, a symposium dedicated to Professor William J. Curran held in 1987.

During his career, Professor Curran chaired the Harvard School of Public Health Committee on Human Research; he directed the Program in Law and Public Health; and he was co-director of the Harvard Interfaculty Program in Medical Ethics from 1973 to 1980. He was also an advisor to the World Health Organization and spent two sabbatical periods in Europe with WHO organizations. He advised and lectured in countries throughout the world.

At Harvard Law School and at …

Judicial Conservatism V. A Principled Judicial Activism: Foreword To The "Symposium On Law And Philosophy", Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In the wake of the Reagan administration's numerous judicial appointments, it is the rare observer of the American legal scene who has not thought seriously about the proper role of the judge in enforcing the law. Editorialists, columnists, and academicians are all debating in one form or another the classic jurisprudential question: "What is law?" While such questions have never completely dropped from sight, we are now in a period of constructive intellectual turmoil much like those surrounding the Nuremburg trials and the civil rights movement. Such periods are usually characterized by, and perhaps caused by, a perception among an …

Re Enumerated Constitutional Rights The Only Rights We Have? The Case Of Associational Freedom, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Much of contemporary constitutional thought assumes that the only rights individuals have are either those that they are given by the legislature or those that are explicitly specified in the Constitution of the United States (or in a state constitution). Such a view of rights is based on the jurisprudential philosophy known as legal positivism, a view that has dominated academic discussions about legal rights for at least fifty years and that has begun to wane only in the last fifteen years.' In this Paper, I will try to explain how adherence to this legal positivism taints and distorts constitutional …