Digital Commons Network^™

Stalking Secret Law: What Predicts Publication In The United States Courts Of Appeals , Deborah J. Merritt, James J. Brudney

Faculty Scholarship

Nearly four fifths of federal court of appeals opinions are unpublished. For more than 25 years, judges and scholars have debated the wisdom and fairness of this body of "secret" law. The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value. Despite continued controversy over unpublished opinions, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and multivariate statistical methods, we were able to identify the factors that predict publication. Some of those factors, such as …

E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg

Faculty Scholarship

For almost a decade, the United States and Europe have anticipated a clash over the protection of personal information. Between the implementation in Europe of comprehensive legal protections pursuant to the directive on data protection and the continued reliance on industry self-regulation in the United States, trans-Atlantic privacy policies have been at odds with each other. The rapid growth in e-commerce is now sparking the long-anticipated trans-Atlantic privacy clash. This Article will first look at the context of American e-commerce and the disjuncture between citizens' privacy and business practices. The Article will then turn to the international context and explore …

Secret Trials, David Cole

Georgetown Law Faculty Publications and Other Works

Today, U.S. immigration authorities use secret evidence to lock up immigrants in deportation proceedings, to exclude aliens at the border, and to oppose applications for "relief from deportation," including asylum.

Criminal Law In Cyberspace, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Two of the most talked-about crimes of the year, the ILoveYou computer worm and the denial of service attacks on Yahoo, eBay, and ETrade, suggest that a new form of crime is emerging: cybercrime. Thousands of these crimes occur each year, and the results are often catastrophic; in terms of economic damage, the ILoveYou worm may have been the most devastating crime in history, causing more than $11 billion in losses.

This paper asks how cybercrime is best deterred. It identifies five constraints on crime - legal sanctions, monetary perpetration cost, social norms, architecture, and physical risks - and explains …

The Sex Discrimination Argument In Gay Rights Cases, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The argument that laws that discriminate on the basis of sexual orientation in fact discriminate on the basis of sex is not new. Advocates have been pressing this claim for almost thirty years. Simply put, the argument is that a statute that bars a sexual relationship between two women or two men discriminates on the basis of sex because either partner could have had the same relationship with a person of the opposite sex.

Torts Teaching: From Basic Training To Legal-Process Theory: Dominick Vetri, "Tort Law And Practice", Joseph A. Page

Georgetown Law Faculty Publications and Other Works

It was in the course of my meanderings through the torts-casebook landscape that I came upon Professor Dominick Vetri's entry in the field. The quality that first attracted me was the way it fashioned a user-friendly introduction to the study of law, to the uniqueness of the common law, and to the centrality of process. The book demonstrated an unusual sensitivity to the bewilderment of beginners and made a special effort to anticipate their needs and concerns. Yet what made Vetri's approach particularly intriguing was that it managed to play not only to nervous neophytes, but also to students in …

Lawyers For The Abused And Lawyers For The Accused: An Interfaith Marriage, Abbe Smith, Ilene Seidman

Georgetown Law Faculty Publications and Other Works

In this article, we will explore what unites lawyers for the abused and lawyers for the accused. In Part II, we will discuss our connection as poverty lawyers concerned about the dignity of individual clients. In Part III, we will discuss our shared commitment to the adversarial system, legal process, and access to justice. In Part IV, we will address the challenge of teaching students who represent victims or perpetrators to be zealous and devoted advocates - but also to care about social and legal injustice on both sides.

The Greening Of America And The Graying Of United States Environmental Law: Reflections On Environmental Law’S First Three Decades In The United States, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this article is to begin to place the developments of the past few decades in historical perspective. To that end, the article is divided into three parts, roughly corresponding to the final three decades of the past century. The first part of the article describes the origins of U.S. environmental law, focusing primarily on its first decade from 1970 through 1980. The second part examines how U.S. environmental laws have since evolved, focusing primarily on their second decade (the 1980s), which was a period of tremendous expansion for environmental law. Finally, the third part considers future trends …

What's So Bad About Bush V. Gore? An Essay On Our Unsettled Election, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

There is a chance that Bush v. Gore may begin a process of laying a more attractive and realistic foundation for constitutionalism than the Official Story provides. The very fact that the Court is not politically independent and that it could not settle the matter in a disinterested, apolitical fashion might set us down a path toward a more mature version of constitutional law. The politically tendentious character of the Coon's reasoning demonstrates that our core constitutional commitments are subject to political manipulation. Ironically, public understanding of this malleability makes our politics more, rather than less, inclusive. It does so …

Collusion And Collective Action In The Patent System: A Proposal For Patent Bounties, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Persistent commentary contends that the Patent Office is issuing patents that appropriate public domain concepts at an alarming frequency. Complaints of low patent quality enjoy growing resonance with regard to business methods, computer software, and other inventions for which patents were not traditionally sought. In this article, Professor Jay Thomas explains how the judiciary's lenient view of patentable subject matter and utility standards, along with miserly congressional funding policies, have rendered the Patent Office an increasingly porous agency. Professor Thomas next reviews existing proposals for improving patent quality, including the conventional wisdom that adoption of an opposition system will contribute …

Highways And Bi-Ways For Environmental Justice, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this essay is to discuss the past, present, and future of the environmental justice movement as illustrated by the highway between Selma and Montgomery in Alabama and the highway system surrounding the City of Atlanta in neighboring Georgia. The essay is divided into three parts. The first part describes environmental justice, seeking both to place it in a broader historical perspective and to discuss how it relates to civil rights law and environmental law. The second part undertakes a closer examination of the challenges presented by efforts to fashion positive law to address environmental justice norms. This …

The Clean Air Act And The Constitution, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In the summer of 1997, the Environmental Protection Agency (EPA) strengthened the air quality standards for two air pollutants, particulate matter and ozone, based on mounting scientific evidence of the harmfulness of these pollutants at levels allowed by the existing standards. With respect to particulate matter (PM), the agency found that numerous epidemiological studies had established an association between PM levels and premature deaths in humans, especially in the elderly population. Indeed, one study on which the EPA relied had found that approximately 60,000 premature deaths in the United States alone could be attributed, annually, to particulate matter. The scientific …

Evaluating Congressional Constitutional Interpretation: Some Criteria And Two Informal Case Studies, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

I begin this Essay by identifying some problems with conducting an empirical inquiry into Congress's performance in constitutional matters. I argue that there is actually only a small set of issues for which we have a reasonably clean record to evaluate. With the problems I have identified in the background, I then examine some aspects of Congress's performance in the impeachment of President William J. Clinton and, more briefly, some aspects of its response to a presidential military initiative taken without formal prior congressional endorsement. I conclude that Congress's performance in the impeachment, however flawed, was reasonably good, and that …

Legislative Constitutional Interpretation, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This is an Essay about "the how" of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and …

Stability And Development In Canon Law And The Case Of "Definitive" Teaching, Ladislas M. Örsy

Georgetown Law Faculty Publications and Other Works

Stability is an essential quality of any good legal system because a community's laws are an expression of its identity, and there is no identity without permanency. Many times we hear in the United States that we are a country held together by our laws. Although the statement cannot be the full truth, it is obvious that if our laws ever lost their stability, the nation's identity would be imperiled. In a religious community where the source of its identity is in the common memory of a divine revelation, the demand for stability is even stronger. Fidelity to the "Word …

The Original Meaning Of The Commerce Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In …

Ethics In Adr: The Many "Cs" Of Professional Responsibility And Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I have been teaching both alternative dispute resolution ("ADR") and professional responsibility for a long time, and I will devote the majority of this essay to reporting on some of the enormous changes and developments in this field. However, I will begin with a mea culpa at a higher level of ethical consciousness than the rules that govern us, or are about to govern us, typically use. I have spent the last five years of my life writing ethical rules for ADR, and I am worried about the future of this field. There are many changes occurring in ADR, and …

Berle And Means Reconsidered At The Century's Turn, William W. Bratton

Georgetown Law Faculty Publications and Other Works

Part I places Berle and Means in the context of the legal theory of its day by comparing the work of Dewey on the theory of the firm and Douglas on corporate reorganization. This discussion highlights two progressive assumptions Berle and Means shared with these business law contemporaries-a confidence in the efficacy of judicial intervention to vindicate distributive policies and a distrust of the institution of contract. These assumptions would, in the long run, cause the book's prescription to land wide of the mark. After 1980, Berle and Means lost their paradigmatic status due to a combination of skepticism respecting …

Introduction To Guiding Global Order: G8 Governance In The Twenty First Century, John J. Kirton, Joseph P. Daniels, Andreas Freytag

Economics Faculty Research and Publications

No abstract provided.

The G8'S Contributions To Twenty-First Century Governance, John J. Kirton, Joseph P. Daniels, Andreas Freytag

Economics Faculty Research and Publications

No abstract provided.

Teaching The Law Of Race (Book Review), Anthony V. Alfieri

Articles

No abstract provided.

Race Prosecutors, Race Defenders, Anthony V. Alfieri

Articles

No abstract provided.

Interpretive Communities: The Missing Element In Statutory Interpretation, William S. Blatt

Articles

No abstract provided.

Crime Control And Feminist Law Reform In Domestic Violence Law: A Critical Review, Donna Coker

Articles

No abstract provided.

Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib

Faculty Scholarship

Proposals for practical institutional reforms are notoriously absent from discussions about deliberative democracy. It is imperative to engage in the “nuts and bolts” debate of just what kinds of changes we discourse theorists or deliberative democrats want to effect. Here I would like to try to synthesize a reform proposal of my own based upon three major assumptions. Without argument, I assume a largely discourse-theoretic view of democracy that takes for granted the republican virtue of collective self-government as well as the Kantian claim that each citizen should be the author of his own laws. I further assume that our …

Multiracial Matrix: The Role Of Race Ideology In The Enforcement Of Antidiscrimination Laws, A United States-Latin America Comparison, Tanya K. Hernandez

Faculty Scholarship

This Article examines the role of race ideology in the enforcement of antidiscrimination laws. Professor Hernandez demonstrates the ways in which the U.S. race ideology is slowly starting to resemble the race ideology of much of Latin America. The evolving U.S. race ideology is a multiracial matrix made up of four precepts: (1) racial mixture and diverse racial demography will resolve racial problems; (2) fluid racial classification schemes are an indicator of racial progress and the colorblind abolition of racial classifications an indicator of absolute racial harmony; (3) racism is solely a phenomenon of aberrant racist individuals; and (4) focusing …

Regulation Of Religious Proselytism In The United States, Howard Hunter, Polly J. Price

Research Collection Yong Pung How School Of Law

Howard Hunter and Polly Price examine the components of the US legal system that affect proselytism, focusing on the contradictions between the constitutional protection of religious freedom and legal constraints on proselytism. Hunter and Price comprehensively review the regulation of proselytism in both public and private spaces in the United States, analyze the justifications for these regulations, and suggest probable future issues of debate regarding religious freedom. Additionally, Hunter and Price argue that the regulation of proselytism has led to a failure to protect religious minorities, and in some cases contributed to their persecution.

2001-2002 Undergraduate Bulletin, Rochester Institute Of Technology

RIT Digital Archives

No abstract provided.

Rationalising Restitutionary Damages In Contract Law: An Elusive Or Illusory Ques, Andrew Phang, Pey Woan Lee

Research Collection Yong Pung How School Of Law

The present article surveys various issues in the law relating to the award of restitutionary damages in contract law, utilising as its point of focus the recent House of Lords decision in Attorney-General v Blake. It explores, in particular, two possible (albeit quite different) routes towards the recovery of such damages; the first based on the (more traditional) compensatory basis and the second on the (more controversial) restitutionary basis for disgorgement of the defendant's gain. While we argue that there is, on a more general level, no overriding objection in principle to the award of restitutionary damages for cynical breach …

The Yugoslav Truth And Reconciliation Commission: A Shaky Start, Jelena Pejic

Fordham International Law Journal

The purpose of this Essay is to examine the establishment of the Yugoslav Truth and Reconciliation Commission and to draw some early conclusions on whether it will be capable of rendering the facts that I would so desperately like my uncle to face. The first part will deal with the need for a Truth and Reconciliation Commission, while the second part will outline and then comment on its basic documents. The assumption is that the reader is basically familiar with the work of similar commissions around the world and the text will therefore not attempt to repeat the literature on …