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2003

Georgetown Law Faculty Publications and Other Works

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Full-Text Articles in Law

Lbj's Ghost: A Contextual Approach To Targeting Decisions And The Commander In Chief, James E. Baker Oct 2003

Lbj's Ghost: A Contextual Approach To Targeting Decisions And The Commander In Chief, James E. Baker

Georgetown Law Faculty Publications and Other Works

The moral imperative and relevance of the Law of Armed Conflict (“LOAC”) is more apparent today than before September 11, 2001. Law distinguishes democratic societies from the terrorists who attack them; nowhere is this more apparent than in the methods and means of warfare. Indeed, part of our revulsion and contempt for terrorism lies in the terrorists' indiscriminate, disproportionate, and unnecessary violence against civilians. In contrast, the enduring strength of the LOAC is its reliance on the principles of proportionality, necessity, and discrimination, which protect civilians and minimize combatant suffering. For these reasons, we should not begrudge the LOAC's ...


Leveling The Playing Field: Federal Rules Of Evidence 412 & 415: Evidence Class As A Platform For Larger (More Important) Lessons, Jane H. Aiken Jan 2003

Leveling The Playing Field: Federal Rules Of Evidence 412 & 415: Evidence Class As A Platform For Larger (More Important) Lessons, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Teachers often approach Federal Rules of Evidence 412 and 415 with trepidation. After all, it means that a law teacher will have to talk about sex, with a group (often a large group) of law students - many of whom are in their early twenties and have never had a non-peer conversation about sex. It looks like a recipe for disaster. Let me suggest just the opposite - it offers the law teacher an opportunity to address perhaps one of the most important lessons of law school: the law only works if there is a level playing field.


Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor Jan 2003

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property ...


Introduction: Global Intellectual Property Rights: Boundaries Of Access And Enforcement, William Michael Treanor Jan 2003

Introduction: Global Intellectual Property Rights: Boundaries Of Access And Enforcement, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Introduction to the Global Intellectual Property Rights: Boundaries of Access and Enforcement Symposium.

The Intellectual Property, Media & Entertainment Law Journal put together a symposium that focused on three issues in intellectual property: patents, The End of Equivalents? Examining the Fallout from Festo; Eldred, a case argued before the Supreme Court; and the relationship between the First Amendment and Internet filters.


Law In The Heart Of Darkness: Atrocity & Duress, Rosa Ehrenreich Brooks Jan 2003

Law In The Heart Of Darkness: Atrocity & Duress, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Our faith in the law is rarely tested, since in America, at least, few of us ordinary people ever find ourselves at the extremes, confronting violence and terror. But the extremes have a way of creeping up on us, and the unimaginable can quickly and imperceptibly begin to seem routine. Millions of ordinary Europeans discovered this in the middle of the last century, and thousands of ordinary Americans discovered it in Vietnam. Some Americans are discovering it again today in the mountains and deserts of Afghanistan and Iraq. Experientially, there is often no sharp dividing line between "ordinary" life and ...


Bishops’ Norms: Commentary And Evaluation, Ladislas M. Örsy Jan 2003

Bishops’ Norms: Commentary And Evaluation, Ladislas M. Örsy

Georgetown Law Faculty Publications and Other Works

In November 2002, the U.S. Conference of Catholic Bishops approved the Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priest or Deacons ("Norms") in response to allegations of sexual abuse of minors by Roman Catholic Church ("Church") officials. This Article examines the Norms on the basis of canonical traditions and the concepts, propositions, and positions contained with them. It strives to find the meaning of the individual norms within the broader context of the life and beliefs of the Church and its need to have structures that prevent corruption and promote healthy ...


Re-Imagining Justice: Progressive Interpretations Of Formal Equality, Rights, And The Rule Of Law, Robin West Jan 2003

Re-Imagining Justice: Progressive Interpretations Of Formal Equality, Rights, And The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique contemporary notions of the rule of law, rights and legal equality. A work of reconstruction, it offers a progressive and egalitarian approach to concepts that have become overly associated with the idea of limited government and social conservatism. Focusing on the necessary conditions of cooperative community life, the book presents a vision of law that facilitates rather than frustrates politics, an analysis of rights that boosts our capacities for caring, and an idea of equality that captures a cosmopolitan vision ...


Pushing Drugs: Genomics And Genetics, The Pharmaceutical Industry, And The Law Of Negligence, Heidi Li Feldman Jan 2003

Pushing Drugs: Genomics And Genetics, The Pharmaceutical Industry, And The Law Of Negligence, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This article presents a piece of a larger, ongoing project on the phenomenon of market-driven manufacturing (MDM) and how tort law should address it. In contrast to the larger project, this article provides a relatively brief overview of the general phenomenon of MDM, but zeros in on how pharmaceutical manufacturers specifically practice MDM. MDM is a well-documented, much practiced activity, although American courts do not recognize MDM as a discrete category of conduct. The basic idea of MDM is that marketing considerations should continuously control every aspect and stage of a product's lifecycle. When a company engages in MDM ...


Constitutional Legitimacy, Randy E. Barnett Jan 2003

Constitutional Legitimacy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed ...


The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks Jan 2003

The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

The goal of this Article is to participate in the challenging project of carving out a new area of study in the place where international law, comparative law, and domestic law intersect. In this Article, I use the story of flawed rule-of-law assistance efforts to demonstrate the importance of this inquiry. I take as a basic premise that there are many situations in which it is justifiable and beneficial for the U.S. and other actors to seek to promote human rights and the rule of law abroad, and that at times even military interventions are a necessary and justifiable ...


The New Mccarthyism: Repeating History In The War In Terrorism, David Cole Jan 2003

The New Mccarthyism: Repeating History In The War In Terrorism, David Cole

Georgetown Law Faculty Publications and Other Works

This Essay will argue that the government has invoked two methods in particular in virtually every time of fear. The first, discussed in Part I, involves a substantive expansion of the terms of responsibility. Authorities target individuals not for what they do or have done but based on predictions about what they might do. These predictions often rely on the individuals' skin color, nationality, or political and religious associations. The second method, the subject of Part II, is procedural-the government invokes administrative processes to control, precisely so that it can avoid the guarantees associated with the criminal process. In hindsight ...


Security And Freedom: Are The Governments' Efforts To Deal With Terrorism Violative Of Our Freedoms?, David Cole Jan 2003

Security And Freedom: Are The Governments' Efforts To Deal With Terrorism Violative Of Our Freedoms?, David Cole

Georgetown Law Faculty Publications and Other Works

One of the most common things that is said about September 11th is that it changed everything. In some respects, that is true. In the most important respects it would be more accurate to say it has changed everything for some, far more than it has for others. One instance of that can be seen in a pole that National Public Radio did one year after September 11th. They asked people to what extent their life had changed. They asked them whether they had to give up any important rights or freedoms in the war on terrorism. Only seven percent ...


David Feller, Senior Partner, Michael H. Gottesman Jan 2003

David Feller, Senior Partner, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

While in law school, in the late 1950's, I decided that I wanted a career in labor law, representing unions. I asked my labor law professor what firms I should consider. He told me there was one firm nationwide that stood out from all the rest: Goldberg, Feller and Bredhoff. He warned, though, that the firm was very small, and the chances of getting a job there remote. I did some research and discovered that the firm had only four lawyers: three partners (Arthur Goldberg, Dave Feller, and Elliot Bredhoft), and one associate (Jerry Anker). The firm was General ...


Suing The Federal Government: Sovereignty, Immunity, And Judicial Independence, Vicki C. Jackson Jan 2003

Suing The Federal Government: Sovereignty, Immunity, And Judicial Independence, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

As I suggest below in Part I, federal sovereign immunity was a doctrine of limited effect in the early years of this republic and allowed for a number of remedies for governmental wrongdoing. Moreover, the constitutional provenance of federal "sovereign immunity" is obscure, and was a matter of genuine uncertainty in early years. Over time the doctrine developed, drawing support from some aspects of constitutional architecture as well as from unreasoning and mistaken extensions of other versions of "sovereign immunity." Among the strands of constitutional structure behind federal "sovereign immunity" are Congress' powers over appropriations and the jurisdiction of the ...


Sovereignty - Modern: A New Approach To An Outdated Concept, John H. Jackson Jan 2003

Sovereignty - Modern: A New Approach To An Outdated Concept, John H. Jackson

Georgetown Law Faculty Publications and Other Works

This article, however, does not purport to cover all possible dimensions of sovereignty but, instead, focuses primarily on what might be thought of as the core of sovereignty - the "monopoly of power" dimension - although it will be clear that even this focus inevitably entails certain linkages and "slop-over penumbra" of the other sovereignty dimensions. This "core" dimension is examined in the context of its roles with respect to international law and institutions generally, and international relations and related disciplines such as economics. National government leaders and politicians, as well as special interest representatives, too often invoke the term "sovereignty" to ...


Re-Imagining Justice, Robin West Jan 2003

Re-Imagining Justice, Robin West

Georgetown Law Faculty Publications and Other Works

What do we mean by legal justice, as opposed to distributive, or social, or political justice; what is the justice, that is, we hope law promotes? What is the justice that lawyers and judges, peculiarly, are professionally committed to pursue? What is the virtue around which, arguably, this profession, and the individuals within it, have defined their public lives?

Justice -- and more particularly legal justice -- is a badly under-theorized topic in jurisprudence; perhaps surprisingly, there is little written on it. The paucity of writing of course has a history. It can be traced to the turn of the last century ...


Rogue Science, Maxwell Gregg Bloche Jan 2003

Rogue Science, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

This review essay considers the tension between the evidence-driven vision of science's mission and the fears of malicious use and terrible consequences that have come to the fore since the terrorist attacks of September 11, 2001. These fears have led some to call for government restrictions on the substance of scientific research and communication. In general, this approach is likely to do far more harm than good. But scientists need to take the problem of social consequences more seriously than they have so far. The author argues in this essay that in some circumstances, when rogue use of science ...


American Servicemembers' Protection Act Of 2002, Lilian V. Faulhaber Jan 2003

American Servicemembers' Protection Act Of 2002, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

On July 1, 2002, the Rome Statute of the International Criminal Court ("ICC") entered into force, establishing the first permanent international criminal tribunal. Although seventy-six countries had ratified the Rome Statute by that date, the United States was not among them. Instead, Congress responded to the creation of the ICC by passing a bill sponsored by House Majority Whip Tom DeLay (R-Tex.) that Republican legislators had been trying to get through the House and Senate for several years. On August 2, 2002, the American Servicemembers' Protection Act of 2002 ("ASPA") became law. The Act was designed to prevent United States ...


Conspiracy Theory, Neal K. Katyal Jan 2003

Conspiracy Theory, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justification for the legal prohibition against conspiracy, centering on psychological and economic accounts. Advances in psychology over the past thirty years have demonstrated that groups cultivate a special social identity. This identity often encourages risky behavior, leads individuals to behave against their self-interest, solidifies loyalty, and facilitates harm against non-members. So, too, economists have developed sophisticated explanations for why firms promote ...


Digital Architecture As Crime Control, Neal K. Katyal Jan 2003

Digital Architecture As Crime Control, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This paper explains how theories of realspace architecture inform the prevention of computer crime. Despite the prevalence of the metaphor, architects in realspace and cyberspace have not talked to one another. There is a dearth of literature about digital architecture and crime altogether, and the realspace architectural literature on crime prevention is often far too soft for many software engineers. This paper will suggest the broad brushstrokes of potential design solutions to cybercrime, and in the course of so doing, will pose severe criticisms of the White House's recent proposals on cybersecurity.

The paper begins by introducing four concepts ...


The Imperative Of Natural Rights In Today's World, Randy E. Barnett Jan 2003

The Imperative Of Natural Rights In Today's World, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

If there is any group that really needs to understand the concept of natural rights, it is professors of constitutional law. The document they teach was written by a generation who uniformly believed in natural rights, used the concept to justify a violent revolution from their mother country, and professed their continued commitment to natural rights long after the separation—a commitment that only intensified in the years that culminated in the Civil War and the adoption of the Fourteenth Amendment.

Yet few constitutional law professors know much, if anything, about this fundamental concept even as a historical matter, much ...


Their Liberties, Our Security: Democracy And Double Standards, David Cole Jan 2003

Their Liberties, Our Security: Democracy And Double Standards, David Cole

Georgetown Law Faculty Publications and Other Works

Some maintain that a "double standard" for citizens and noncitizens is perfectly justified. The attacks of September 11 were perpetrated by nineteen Arab noncitizens, and we have reason to believe that other Arab noncitizens are associated with the attackers and will seek to attack again. Citizens, it is said, are presumptively loyal; noncitizens are not. Thus, it is not irrational to focus on Arab noncitizens. Moreover, on a normative level, if citizens and noncitizens were treated identically, citizenship itself might be rendered meaningless. The very essence of war involves the drawing of lines in the sand between citizens of our ...


Two Cheers For Gentrification, J. Peter Byrne Jan 2003

Two Cheers For Gentrification, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The very word "gentrification" implies distaste. Advocates for the poor and ethnic minorities see affluent whites bidding up the prices for urban housing to levels that force poor families out, depriving them of affordable housing, perhaps rendering them homeless, and changing the character of a neighborhood from one that reflects distinct ethnic and class needs and cultural traditions into a bland emporium for expensive consumer goods. Sometimes historic preservation laws are indicted as particular culprits in setting this dynamic in motion. A result of these perceptions is that the legal literature on gentrification, in general, and historic preservation both reflect ...


Rhetoric And Realities Of Gentrification: Reply To Powell And Spencer, J. Peter Byrne Jan 2003

Rhetoric And Realities Of Gentrification: Reply To Powell And Spencer, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Gentrification represents one of the most encouraging trends in city life since the 1960s. That may be a sad commentary on the fate of American cities or on our urban policies, but it is nevertheless true. The return of affluent people to urban living offers the possibility of reversing declining populations and municipal revenues, permitting enhanced spending on basic services, and increasing employment and educational opportunities. It also brings greater ethnic and economic diversity, which can contribute to a more humane social and cultural life. The great drawback to gentrification is that increased demand for housing increases rents, at least ...


Introduction: Integrity In The Law: Symposium In Honor Of John D. Feerick, William Michael Treanor Jan 2003

Introduction: Integrity In The Law: Symposium In Honor Of John D. Feerick, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Fordham Law School's Integrity in the Law Conference, which honored John Feerick on the occasion of his retirement from the deanship after twenty years of remarkable service to the School, to the University, to the legal profession, and to the law.


Erasure And Recognition: The Census, Race And The National Imagination, Naomi Mezey Jan 2003

Erasure And Recognition: The Census, Race And The National Imagination, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

This Article is concerned with the constitutive power of the census with respect to race. It is an examination of the U.S. Census as an aspect of what Angela Harris calls race law, "law pertaining to the formation, recognition, and maintenance of racial groups, as well as the law regulating the relationships among these groups." While others have noted and explored the epistemological and constitutive functions of the census race categories, my aim is to unpack this insight in the context of two specific examples of categorical change and contest: the addition of a Chinese racial category in 1870 ...


Proposed Legislation On Judicial Election Campaign Finance, Roy A. Schotland Jan 2003

Proposed Legislation On Judicial Election Campaign Finance, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In light of the recent extraordinary rise in judicial campaign spending, illustrated in Ohio's 2000 judicial elections (and elsewhere, and in Ohio again in 2002), we must consider improving the Model Code of Judicial Conduct. The 1999 amendments to the Code addressed campaign finance, but did not address two major problems. The first one is the absence of limits on aggregate contributions from law firms; only Texas has such limits. This gap allows large contributions from law firms to go to judges presiding in cases in which those firms participate, circumventing the recusal and disqualification triggers. The second problem ...


The Difference In Criminal Defense And The Difference It Makes, Abbe Smith Jan 2003

The Difference In Criminal Defense And The Difference It Makes, Abbe Smith

Georgetown Law Faculty Publications and Other Works

My own view of criminal defense lawyering owes much to Monroe Freedman. I agree with his "traditionalist view”, of criminal defense ethics as a lawyering paradigm in which zealous advocacy and the maintenance of client confidence and trust are paramount. Simply put, zeal and confidentiality trump most other rules, principles, or values. When there is tension between these "fundamental principles” and other ethical rules, criminal defense lawyers must uphold the principles, even in the face of public or professional outcry. Although a defender must act within the bounds of the law, he or she should engage in advocacy that is ...


Alarmism Versus Moderation In Responding To The Rehnquist Court, Mark V. Tushnet Jan 2003

Alarmism Versus Moderation In Responding To The Rehnquist Court, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

I begin in Part I by offering a description of the Supreme Court's recent decisions as a less substantial repudiation of prior principles than many think them to be, and as leaving Congress with the means to achieve a quite substantial proportion of the policy goals it pursued in the statutes the Court invalidated. Part II explains why Congress is unlikely to do so, in light of our apparent commitment to divided government, and parties that are organized around distinctive ideologies because of divided government. Part III turns to the prospect for continued policy transformation, identifying the conditions under ...


Self-Historicism, Mark V. Tushnet Jan 2003

Self-Historicism, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Among the contributors to this symposium, I may be the person with the longest acquaintance with Sandy Levinson. I want to begin, therefore, with a recollection of the period of my earliest contacts with Sandy - a recollection that, as I hope to show, has some bearing on some of the aspects of Sandy's work that most interest me . . . I use these examples to introduce an argument connected to Sandy's longstanding interest in historical memory. The casebook of which he is a co-author is organized historically-relentlessly so, I would put it, to the point where I personally would find ...