Digital Commons Network^™

Loper Bright In A Larger Interpretive Perspective: Is This Justice Scalia’S Court Anymore?, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Loper Bright Enterprises v. Raimondo has left administrative lawyers agog: Could the Supreme Court really reverse the “goliath” known as Chevron deference? For those who study the Court’s interpretive landscape more broadly, however, Chevron reversal may not be as unexpected as administrative lawyers believe. This Article will look at Loper Bright by linking three notable interpretive developments: the major questions doctrine, Chevron skepticism, and strict constructions of statutory text. These developments share the same risk: the Court is imposing a new “clarity tax” on both Congress and administrative agencies. Having said this, others’ grave worries about changes in Chevron are …

Navigating The "Green Shift": Should The Emerging Right To A Healthy Environment Be Balanced Against Indigenous Rights?, Alexa Sinha

Hofstra Law Faculty Scholarship

No abstract provided.

Italian Comparative: A Trait Of The Legal System, Bianca Gardella Tedeschi

FIU Law Review

The cultural environment of Italian academia was open to suggestions that came from other legal systems and shaped an eclectic legal culture. Italy is an hybrid system that took the code from France, the legal science from Germany, and has always been receptive of foreign suggestions. This cultural background may explain why the Italian legal curriculum requires a mandatory course of comparative law and why comparative law has been an important field of Italian legal research. At the same time, comparative law was characterized by an an important mark of antiformalism, necessary to swim through the times of Fascism and …

The Spree Of Principles And The Abuses Of The Balancing Doctrine In Brazil, Ronaldo Porto Macedo

FIU Law Review

This article delves into the nuanced distinction between principles and rules in legal discourse, emphasizing their differing grammatical functions. While acknowledging the necessity of principles in legal reasoning, it cautions against their unchecked proliferation, exemplified by the Ellwanger case. The analysis underscores the importance of contextual understanding in discerning between principles and policies, advocating for a philosophical-political reflective approach. It critiques the overreliance on balancing-proportionality as a universal method, warning against its potential for dogmatic reduction and infringement on fundamental rights like freedom of expression. Ultimately, it calls for a balanced, reflective interpretation of principles to mitigate the risks inherent …

The Violence Of Free Speech And Press Metaphors, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.

The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition …

The Future Scope Of The Character Evidence Prohibition: The Contextual Statutory Construction Argument That Could Finally Force The Policy Discussion, Paul F. Rothstein, Edward J. Imwinkelried

Georgetown Law Faculty Publications and Other Works

The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

Updating Senator Borah: A Nuclear Kellogg-Briand Pact, David A. Koplow

Georgetown Law Faculty Publications and Other Works

In recognizing the legacy of Senator William E. Borah, the author shares his remarks from the Borah Symposium at the University of Idaho, about the Senator's personality and character, his contribution and later characterization to international law and national security, specifically the 1928 Kellogg-Briand Pact, and finally, a proposal to a modern reincarnation to the Kellogg-Briand Pact and the newer threats of this era.

How And When Do We Get To Maybe? | Book Review, Kris Franklin

Articles & Chapters

No abstract provided.

The Original Meaning Of The Sixteenth Amendment, John R. Brooks, David Gamage

Faculty Scholarship

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2023 Supreme Court case of Moore v. United States, taxpayers have argued that the Sixteenth Amendment only authorizes taxation of realized income—this is, that gain from appreciated property can only be taxed as “income” when there has been a sale or conversion of that property.

In this Article we argue—based on the …

Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner

Touro Law Review

This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …

Overturning Race-Conscious Admissions: Analyzing The History Of Higher Education Affirmative Acton Legal Discourse And Preserving Whiteness, Hiba A. Qari

Graduate Theses, Dissertations, and Problem Reports (ETD)

Although researchers have investigated Affirmative Action, few have attempted to understand and explain the language mechanisms shaping public opinion and policy. The purpose of this study was to explore the historical context of higher education Affirmative Action legal discourse. This study employed Critical Discourse Analysis and Critical Race Theory to analyze how language and race, as social constructs, maintain White dominance in law and higher education. The thematic concepts included power, White normativity, and diversity rhetoric. This project explored the historical evolution of the U.S. Supreme Court’s decisions on Affirmative Action policy in higher education. The study also investigated the …

“Legally Magic” Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Kate Weisburd, Roseanna Sommers

Faculty Scholarship

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. …

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Faculty Scholarship

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Statutory Interpretation In The 2020s: A View Of The Cathedral, Ethan J. Leib, Fordham University School Of Law

Faculty Scholarship

This Comment looks at eighty-seven statutory interpretation cases in the Supreme Court’s docket over the 2020–2022 Terms to evaluate trends in how the nation’s highest court reads statutes in the modern era. It concludes that the overarching story is neither a purely “textualist” one, nor one in which the liberal bloc is very often at odds with the conservative bloc. Instead, statutory interpretation is much more consensual than it is often credited to be—and contextual and purposive arguments continue to remain valid modalities of interpretation, even as standard textualist tools also remain relevant.

Executive Power, The Royal Prerogative, And The Founders’ Presidency, Andrew Kent

Faculty Scholarship

The original meaning of the opening clause of Article II of the Constitution— which vests “[t]he executive power ... in a President of the United States”—has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered …

Elective Corporate Governance: Does Board Choice Matter?, Martin Gelter, Mathias M. Siems

Faculty Scholarship

Recent literature discusses how “menu laws” allow corporations to opt into one of multiple competing statutory regimes. This paper contributes to this literature by presenting original empirical research on the choice between corporate board models. Today, many countries not only allow modifications of a particular board structure, but they provide separate legal templates, giving firms a choice between a one-tier and a two-tier board model (and sometimes a third hybrid model). However, how companies actually use these rules is largely underexplored. Based on data from 14 European countries that permit a choice between two models, this paper examines the use …

Demoralizing Elite Fraud, Zephyr Teachout

Faculty Scholarship

The Supreme Court keeps striking down wire fraud convictions. Why?

As I show in this piece, from the 1970s to this year, the Court has repeatedly attempted to shift the framework of fraud cases from moral language to morally neutral language. As a result, the Court ends up making a hash of statutory interpretation, because it then has to interpret statutes that it has effectively rewritten. For instance, much of the current fraud jurisprudence revolves around defining what property means. The Mail Fraud statute does not have the language of property in it, and the legislative history does not involve …

The (Still) Unexplored Possibilities Of A Poetics Of Law, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In this contribution to the symposium celebrating the Fiftieth Anniversary of James Boyd White’s The Legal Imagination, I have accepted White’s invitation in the last chapter of his magisterial book to think about poems and judicial opinions as compatible acts of imagination and meaning making. White asks brilliant questions, and his book is full of them, each a nugget of insight and also a prod that asks the reader to think harder, think deeper, revisit her first thoughts, to perhaps change her mind, and above all, with guidance, to educate herself. In this chapter of the book, White is …

Climate-Related Shareholder Activism As Corporate Democracy: A Call To Reform “Acting In Concert” Rules, Dan W. Puchniak, Umakanth Varottil

Research Collection Yong Pung How School Of Law

Climate change is an issue of global importance, which may turn out to be the issue of this century. Companies are at the core of both the problems and solutions for climate change. Given this reality, it is astounding that in virtually all jurisdictions in the world ‘acting in concert rules,’ which were designed decades ago to facilitate an efficient market for corporate control, effectively prevent shareholders who hold a majority of shares from democratically replacing boards of dirty companies. Our Article exposes this overlooked reality by undertaking the first in-depth comparative analysis of acting in concert rules with a …

Extra-Legal Uses Of Tm, Clark Asay, Lareina Hingson, Stephanie Plamondon

Faculty Scholarship

Theoretical accounts of trademark law suggest that trademarks serve multiple marketplace functions, including protecting consumers and producers from unfair dealing, reducing consumer search costs, and incentivizing higher quality goods and services. Producers of goods and services often use the ‘TM’ symbol to signal their assertion of legal rights in a mark, arguably helping advance these goals. But recently, an interesting phenomenon has arisen in which individuals not engaged in typical commercial activities have been using the TM signifier in ways that don’t necessarily correspond to the symbol’s legal function. These so-called “extra-legal” uses of the TM symbol can offer insights …

Sails Symposium Launch On International Law Scholarship: What We Write, Where We Publish, And Why It Matters, Kathleen Claussen, Melissa J. Durkee, Rebecca Ingber, Steven Arrigg Koh

Articles

No abstract provided.

Reimagining The Refugee Figure: Survival Migration And Its After-Affects, Gabriella Pishotti

Graduate Theses, Dissertations, and Problem Reports (ETD)

As the refugee crisis continues to worsen, so too will the field of refugee literature continue to expand into new directions to account for shifts in the refugee figure and developing concerns of survival migrant writers. Drawing from the foundational work of scholars such as Sianne Ngai and Sara Ahmed, I use affect theory as an intervention into these contemporary refugee texts to posit a rethinking of how we analyze refugee stories as narratives of crisis. I employ an affective approach to demonstrate how the emergency of forced migration can be narratively depicted in an embodied way that fosters connection …

Beyond Chatgpt: Transforming Government With Augmented Llms, Orly Mazur, Adam Thimmesch

Faculty Journal Articles and Book Chapters

The release of ChatGPT demonstrated the remarkable capabilities and the existing limitations of large language models (LLMs) and the natural language chatbots that they power. One area that is ripe for innovation using this new technology, but that has often been bypassed in mainstream discussions, is the public sector.

This Article redirects attention towards this overlooked area, acknowledging the limitations of LLMs, while specifically exploring their potential to transform government operations. The Article discusses the various technological advancements that allow for the development of tools far more refined than the general-use chatbots commonly available to the public. The Article then …

Sanctuary Without Resistance, Ava Ayers

Lewis & Clark Law Review

Activist movements that embrace the idea of sanctuary for noncitizens are rich with narratives of resistance. These narratives vary; some sanctuary advocates pursue resistance only to specific federal immigration policies, while others offer more radical critiques that challenge the very legitimacy of U.S. immigration law. But when local and state governments adopt sanctuary policies, the idea of resistance is often altogether lost.

Local and state governments who adopt policies of noncooperation with federal immigration enforcement sometimes offer narratives in which the values that motivate sanctuary policies involve not resistance to injustice, but public safety, economic development, and other more traditional …

Cultural Loss In The Context Of Indian Residential School Litigation: Exploring The Role Of Tort Law As A Tool For Transformative Reparations, James Plunkett

Lewis & Clark Law Review

The issue of restitution for sexual and physical abuse of survivors of Indian residential schools has gained litigative traction, leaving the issue of reparations for cultural loss in the shadows. This Comment explores the idea of a new tort of cultural loss to more holistically address the systematized harm experienced by Aboriginal children forced into residential schools in Canada. Based on the qualitative experiences of survivors of residential schools, this Comment suggests a taxonomy of cultural loss that may further inform efforts to use tort law as a vehicle for reparative justice. Ultimately, this tort theory demands further inquiry and …

Moore V. United States: The Constitutionality Of The Taxation Of Unrealized Gains, Loren Naldoza

Lewis & Clark Law Review

Rarely in modern tax jurisprudence does the common adage “nothing is certain except death and taxes” receive a challenge in the highest court in the land. This year, the Supreme Court is considering the most existential question concerning the federal income tax in over a century: what is “income”? The definition of “income” has gone through several developments and adjustments since the enactment of the Sixteenth Amendment. Two taxpayers have reached the Supreme Court to challenge one such aspect of the definition of “income”— whether realization is a constitutional requirement as required by the Sixteenth Amendment. When an accession to …

Restricting The Use Of Rap Lyrics As Evidence In Courts: A Targeted Approach To Tackling Discrimination In Criminal Procedure, Paige M. Walker

Lewis & Clark Law Review

This Article is a review of Rap on Trial: Race, Lyrics, and Guilt in America. The book largely focuses on the dangers of allowing rap lyrics to be presented as evidence in criminal trials. The authors posit that the fictitious and hyperbolic nature of rap lyrics are misrepresented by prosecutors as autobiographical confessions that document illegal activity and violent character traits of defendants. The authors compare rap to other musical genres and conclude that racism is the underlying cause for why the genres are treated differently in court. The authors also advocate for evidence nullification and argue for a complete …

The Emerging Crime Of Persecution Based On Sexual Orientation, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article argues that persecution based on sexual orientation constitutes a crime against humanity under international law. Unlike other scholarship that has focused on the definition of crimes against humanity in the 1998 Rome Statute for the International Criminal Court—which does not explicitly enumerate “sexual orientation” as a protected classification—this Article looks to customary international law made up by the practices of states.

Diligent research has revealed that between 1998 and 2022, at least 107 states enacted laws or revised existing laws decriminalizing sexual orientation and/or categorizing sexual orientation as a protected classification from discrimination. This is in addition to …

Sound Marks, Deborah R. Gerhardt, Jon J. Lee

Faculty Publications

A lion roars just before a film rolls. A doughboy giggles. A giant green man laughs a hearty, "Ho, Ho, Ho." These iconic sounds are all federally registered as trademarks. They identify specific brands and distinguish their products and services from the competition. Human brains treat sounds like these as categorization tools and cognitive shortcuts—ideal trademark symbols. But what about the sounds your favorite toys or electronic devices make? Or those made by a fictional character in the latest blockbuster?

This Article tackles these issues and others. We push back against the widely-held belief that all unconventional trademarks—product designs, colors, …