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Remapping Constitutional Theory, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The time has come for constitutional theory to move beyond the stale argument between originalists and living constitutionalists. The declining significance of that debate provides a motivating backdrop for this Article, but it is not the main point of the discussion. Instead, this Article focuses on the possibility of remapping constitutional disagreement in a fresher, more generative, and more descriptively accurate fashion.

The discussion begins with another familiar dichotomy – the distinction between “judicial activism” and “judicial restraint.” Unfortunately, as employed in popular discussion and in some academic literature, this distinction is also confused and unhelpful. However, we can begin …

Roadmap To Reconciliation Ii: Ruminations On The Need For Integrity In Intellectual Interfaith Engagement, Shlomo Pill, Ariel J. Liberman

Touro Law Review

This article builds on the framework for a law school-based academic center for Jewish-Muslim engagement laid out in our previous work, Roadmap to Reconciliation. In this follow-up essay, we outline standards, or ground-rules, for the individuals and institutions engaged in academic interfaith discussions of the kind that would occur in our proposed Center. Chief among these considerations is the need to respect the integrity of each respective faith tradition involved in such conversations. We argue for an interfaith dialogic modeled on the insights of Rabbi Joseph B. Soloveitchik, and discuss how his reflections on the potentials and risks of interfaith …

Statutory Interpretation From The Outside, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional …

Periodic Leave: An Analysis Of Menstrual Leave As A Legal Workplace Benefit, Hilary H. Price

Oklahoma Law Review

No abstract provided.

“The Customer Is Always Right”: Consumer Perception For “Generic.Com” Trademarks, Sarah M. Simpson (Oliver)

Oklahoma Law Review

No abstract provided.

Grey State, Blue City: Defending Local Control Against Confederate “Historical Preservation”, Sage Snider

Vanderbilt Journal of Entertainment & Technology Law

Confederate monuments have become lightning rods across the American landscape. While these ubiquitous symbols have spread Lost Cause propaganda for over one hundred years, they have also instigated unprecedented protest and violence since the 2015 Charleston massacre, 2017 Charlottesville rally, and 2020 George Floyd murder. In response, southern state legislatures have passed preemptory “statue statutes,” laws that obstruct left-leaning cities from removing Confederate monuments. This Note compares the political and legal strategies cities and citizens have used to overcome these legal barriers, both in opposition to individual monuments and statue statutes themselves. Using Tennessee’s Historical Commission waiver process as a …

The Last Breakfast With Aunt Jemima And Its Impact On Trademark Theory, Deborah R. Gerhardt

Faculty Publications

The generally-accepted law and economics theory of trademarks fails to explain why a brand owner would ever walk away from a trademark that generates financially lucrative returns. In 2020, that is exactly what happened again and again as brand owners pledged to abandon racially explicit marks in the weeks following George Floyd’s murder. As citizens became more attuned to the experiences of those depicted in racial marks, the owners of Aunt Jemima, Uncle Ben’s, the Cleveland Indians, the Redskins, the Dixie Chicks, Lady Antebellum and others announced these brands’ days were numbered. By evoking racist stereotypes, they became a moral …

Automated Video Interviewing As The New Phrenology, Ifeoma Ajunwa

Faculty Publications

This Article deploys the new business practice of automated video interviewing as a case study to illuminate the limitations of traditional employment antidiscrimination laws. Employment antidiscrimination laws are inadequate to address the unlawful discrimination attributable to emerging workplace technologies which gatekeep employment opportunities. The Article maintains that the practice of automated video interviewing is based on shaky or unproven social scientific principles that disproportionately impact racial minorities. In this way, the practice of automated video interviewing is analogous to the pseudoscience of phrenology, which enabled societal and economic exclusion through the legitimization of eugenicist and racist attitudes. After parsing the …

Amar’S The Words That Made Us, Michael J. Gerhardt

Faculty Publications

Our generation’s preeminent constitutional scholar, Professor Akhil Amar of the Yale Law School, is, like the Constitution itself, a national treasure. His most recent book, The Words that Made Us, is another masterpiece of constitutional and historical exegesis, the first of three volumes that illuminate in what ways the American Constitution has defined, energized, united, and divided the nation and its people through constitutional conversations and engagements over its meaning throughout our history. The book is awash with stories about the incremental broadening of “We the People,” the hero, authority, casualty, and beneficiary of the words that made us. …

Dismantling The Wall, Charles Shane Ellison, Anjum Gupta

Faculty Scholarship

Between 2017 and 2021, the Trump Administration waged an unprecedented battle on U.S. asylum structure, procedure, and substantive law. Seeking to alter long-standing legal principles and practices in a host of areas, the former administration’s efforts to demolish asylum protections were systematic and comprehensive. The Immigration Policy Tracking Project cataloged no fewer than ninety-six discrete policy and regulatory changes that the former administration implemented to curtail access to asylum. While some of the administration’s actions, such as the decision to separate children from their parents at the border, were carried out in the open, many other actions were largely hidden …

“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher

Faculty Scholarship

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …

Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Pollution, “Ecologists,” Regulations, And Renewables, 1945-1981, Adam D. Orford

Faculty Scholarship

Nation’s Business was a monthly business magazine published by the U.S. Chamber of Commerce, with a subscription list larger than Business Week, Forbes, or Fortune. This study explores how the magazine responded and adapted to the rise of environmentalism, and environmental regulation of business, by exploring its treatment of four topics: DDT, environmentalists, government regulation, and renewable energy. It is built on a full-text review of all issues of Nation’s Business published between 1945 and 1981. It reveals the development of a variety of anti-environmental logics and discourses, including the delegitimization of environmentalism as emotional and irrational, the undermining of …

Discrimination, Trump V. Hawaii, And Masterpiece Cakeshop, Christopher C. Lund

Georgia Law Review

This short symposium piece is a comment on two of the Supreme Court’s recent religion cases. The first is Trump v. Hawaii, the travel ban case, where the Court rejected the claim of unconstitutional religious discrimination against Muslims.1 The second is Masterpiece Cakeshop, the case about the baker who refused to make a cake for a gay wedding, where the Court accepted the claim of unconstitutional religious discrimination against a conservative Christian.2 One case finds discrimination, while the other rejects it. Yet more fundamentally, the pairing suggests differences in how we perceive or react to evidence of discrimination. Both on …

Centering Noncitizens' Free Speech, Gregory P. Margarian

Georgia Law Review

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

A Philosophy Of Contract Law For Artificial Intelligence: Shared Intentionality, John Linarelli

Scholarly Works

This is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibò, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Coase-Sandor Institute for Law & Economics Research Paper Series

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

Global Scripts In Transnational Legal Orders And Governance, Susan Block-Lieb

Faculty Scholarship

Global scripts—the rules, norms, and standards in international texts, and the tacit assumptions that surround and give meaning to them—exist on numerous issues (finance, trade, economic development, climate change, education, human rights, and gender equality), at every level of engagement (international, national, local), and at every phase of recursive norm construction and contestation. Case studies involving global scripts appear across a wide range of scholarship—considering sociological, anthropological, or sociolegal perspectives, or on international political economy, international organizations, international relations, or law and development—but because they are focused on one piece of the puzzle at a time, variation exists regarding the …

Legitimizing Lies, Courtney M. Cox

Faculty Scholarship

Lies are everywhere today. This scourge of misinformation raises difficult questions about how the law can and should respond to falsehoods. Legal discourse has traditionally focused on the law’s choice between penalizing and tolerating lying. But this traditional framing vastly oversimplifies the law’s actual and potential responses. Using trade secrets as a case study, this Article shows that the law sometimes accepts lies as a legitimate option for fulfilling legal requirements and may even require lies in increasingly common circumstances.

Commonly supposed legal and moral commitments against lying do not undermine this reality. To the contrary, the Article reveals that …

What We Ask Of Law, Aziz Z. Huq

Public Law and Legal Theory Working Papers

A minimal, reasonably uncontroversial, demand of a legal system is that it should stabilize a polity against the chance hazards of ordinary violence and soften the blows of extraordinary, destabilizing misfortune. Law in the contemporary United States, however, has not abated the lethal toll of violent crime, the serial mass shootings of children, the endless flow of racialized police violence, or even the toll of insurrectionary violence that shadows democratic politics. The gap between law’s operation in practice and its ultimate aspirations toward social order offers a hint that something in our dominant working model of law, and its relation …

No “Box To Be Checked”: Environmental Justice In Modern Legal Practice, Clifford J. Villa

Faculty Scholarship

For nearly thirty years, environmental justice has been part of our civic conversation and included in the mission of federal agencies. But while public attention to environmental justice has waxed and waned over time, environmental justice principles have endured and developed into rules of law. This development may be expected to continue and accelerate with recent events such as the nationwide outcry after the police killing of George Floyd in 2020, the disparate impacts of COVID-19 on people of color, and the express priorities of the Biden administration. This paper seeks to help legal practitioners and other interested parties comprehend …

Beyond Bake Sales: Environmental Justice Through Superfund Removal Actions, Clifford Villa

Faculty Scholarship

Few people outside of EPA seem to be aware of the existence of the Superfund removal program, a program through which millions of dollars are allocated through EPA’s ten regional offices each year for cleaning up contaminated sites that are not designated 'Superfund' sites. This essay will provide a basic introduction to the Superfund removal program and particularly encourage consideration of Superfund removals to address growing concerns for environmental justice. Part II examines the legal authorities and limitations of the Superfund removal program. Part III provides examples of removal actions in environmental justice communities across the country. Part IV considers …

Don't Blame The Flint River, Clifford Villa

Faculty Scholarship

Since appearing in modern form fifty years ago, the Clean Water Act has proven a powerful force for environmental justice, helping to clean up urban waterways across the country. Through establishment of water quality standards and enforcement of regulatory requirements, the Clean Water Act has compelled public authorities and private companies to upgrade infrastructure and curtail
discharge of sewage and other industrial effluent. At the same time, urban communities have continued to struggle with water pollution beyond the reaches of the Clean Water Act. This Article briefly examines three such communities: the Anacostia area of Washington, D.C.; the neighborhoods along …

Angels, Virgins, Demons, Whores: Moving Towards An Antiracist Praxis By Confronting Modern Investment Law Scholarship, Tara Van Ho

Faculty Articles

Racism is not a natural phenomenon. Historically, it was socialised into global exist existence through intentional acts that have become embedded parts of the international legal order and domestic social systems. Rejecting racism and developing alternative antiracist approaches similarly require intentionality. One area of concern for scholars is how our linguistic and framing choices perpetuate or reproduce racialised hierarchies. In this article, I employ I. Bennett Capers's 'Reading Black' methodology to interrogate racialised narratives embedded in four contributions to modern international investment law debates. The purpose is not to condemn the individual authors but to identify how the socialisation and …

'Indirect Pathways Into Practice': Philippine Internationally Educated Nurses And Their Entry Into Ontario's Nursing Profession, Lualhati Marcelino

Theses and Dissertations (Comprehensive)

While there are several studies that highlight the quantitative and statistical profiles of internationally educated nurses (IENs) from the Philippines who migrate to countries throughout Asia, the Middle East, Europe, the United States and Canada, there is little research that delves deeply into the qualitative review and analysis of their experiences in their own words. This study addresses that gap by applying the transnational feminist concept of “global care chains” in a single case study design that explores the experience of nurses who migrated to Ontario through permanent and temporary immigration streams and were interviewed in 2011 to 2012 to …

Three Kinds Of Fault: Understanding The Purpose And Function Of Causation In Tort Law, Marin Roger Scordato

Scholarly Articles

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning on at least three occasions, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate. In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law is it more prevalent than in its dominant cause of action, negligence. Unsurprisingly then, the causation …

Text Is Not Enough, Anuj C. Desai

University of Colorado Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects gay and lesbian individuals from employment discrimination. The three opinions in the case also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism. The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation have known for decades: judges are multimodalists, drawing from a panoply of forms of …

Synchronizing Copyright And Technology: A New Paradigm For Sync Rights, Michael P. Goodyear

Missouri Law Review

Embedded in a copyright owner’s musical work or sound recording is the synchronization, or sync right, the exclusive right to use music in sync, or in timed-relation, with audiovisual works. Considerations about sync rights, one of the least discussed aspects of music copyright, have come to the fore as the world has increasingly moved from the real world to the virtual. The COVID-19 pandemic has spurred thousands of activities and events to go online. With many of these involving music, the shift to the virtual world has raised new questions about the extent of sync rights.

Identity By Committee, Scott Skinner-Thompson

Publications

Even in school districts with relatively permissive approaches to defining and embodying gender, the identities of transgender and gender variant students are often governed by complex regulatory protocols. Ensuring that a student is able to live their gender at school can involve input from a host of purported stakeholders including medical providers, mental health professionals, school administrators, the student’s parents, and even the broader community. In essence, trans and gender variant students’ identities are governed by committee, which reduces students’ control over their lives, inhibits self-determination, constricts the scope of permissible gender identities, subjects them to incredible degrees of state …

Originalism And Personal Jurisdiction: Several Questions And A Few Answers, Lawrence B. Solum, Max Crema

Faculty Scholarship

The modern constitutional law of personal jurisdiction is largely the product of living constitutionalism. International Shoe's minimum-contacts and fairness standard was not derived from the constitutional text, and it cannot be supported by the original meaning of the Due Process of Law Clauses of the Fifth and Fourteenth Amendments. This Article explores the implications of that fact for the constitutional law of personal jurisdiction, with a focus on the federal courts.

The Article proceeds in six steps. First, it lays out the theoretical framework provided by Public Meaning Originalism, including the Fixation Thesis, the Constraint Principle, and the interpretation-construction …

#Fintok And Financial Regulation, Nikita Aggarwal, D. Bondy Valdovinos Kaye, Christopher K. Odinet

Faculty Scholarship

Social media platforms are becoming an increasingly important site for consumer finance. This phenomenon is referred to as “FinTok,” a reference to the “#fintok” hashtag that identifies financial content on TikTok, a popular social media platform. This Essay examines the new methodological possibilities for consumer financial regulation due to FinTok. It argues that FinTok content offers a novel and valuable source of data for identifying emerging fintech trends and associated consumer risks. As such, financial regulators should use FinTok content analysis—and social media content analysis more broadly—as an additional method for the supervision and regulation of consumer financial markets. The …