Digital Commons Network^™

Misunderstanding Congress: Statutory Interpretation, The Supermajoritarian Difficulty, And The Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Every lawyer's theory of statutory interpretation carries with it an idea of Congress, and every idea of Congress, in turn, carries with it an idea of the separation of powers. In this article, the author critiques three dominant academic theories of statutory interpretation--textualism, purposivism, and game theory--for their assumptions about Congress and the separation of powers. She argues that each academic theory fails to account for Congress's dominant institutional features: "the electoral connection," the "supermajoritarian difficulty," and the "principle of structure-induced ambiguity." This critique yields surprising conclusions, rejecting both standard liberal and conservative views on statutory interpretation.

"Plain" meaning, it …

The Unsettled Nature Of The Union, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).

In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment's text made sense to the Founders because they did not envision any suits against the states arising under federal law. …

Following In Paul Miller's (Very Large) Footsteps, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A tribute to Paul Miller, former Commissioner of the Equal Employment Opportunity Commission (EEOC). Miller was a leader on disability rights and on ensuring that the EEOC was effectively and forcefully implementing the Americans with Disabilities Act (ADA) of 1990. The author discusses Miller's work as EEOC Commissioner.

Skilling: More Blind Monks Examining The Elephant, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Most academics and practitioners with whom the author has discussed the result in Skilling v. United States believe that it is a sensible decision. That is, the Supreme Court did the best it could to limit the reach of 18 U.S.C. § 1346, which all nine justices apparently believed—correctly—was, on its face, unconstitutionally vague. Congress responded quickly and with little consideration with the supremely under-defined § 1346. In the over twenty years since the statute's enactment, the Courts of Appeals have been unable to come up with any unified limiting principles to contain its reach. The Skilling Court, evidently reluctant …

Emotion, Neuroscience, And Law: A Comment On Darwin And Greene, John Mikhail

Georgetown Law Faculty Publications and Other Works

Darwin’s (1871) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgments is “constituted” or “driven by” emotion (Greene 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner et al. 2008). With one exception, all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et …

Accreditation Reconsidered, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

Higher education is one of the most successful sectors in the nation at a time when much of the economy is struggling. Its quality has been buoyed by a long tradition of investment, both public and private, and by a healthy degree of autonomy from governmental control. America’s three governance innovations, citizen governing boards, shared governance, and accreditation, also have encouraged both quality and institutional autonomy in higher education.

Accreditation has been a particularly important contributor to the institutional diversity and vitality of American colleges and universities. Most nations have a ministry of education that oversees institutions of higher education. …

Biosafety Concerns Involving Genetically Modified Mosquitoes To Combat Malaria And Dengue In Developing Countries, Graciela R. Ostera, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Malaria and dengue are the most prevalent mosquito-borne infections worldwide. Because traditional vector control methods have proven to be insufficient to control mosquito populations in endemic areas, scientists are actively working in the design of new strategies, such as genetically modified (GM) mosquitoes, to reduce disease transmission. The replacement of natural populations with GM mosquitoes is becoming a tangible possibility, however, many fear that the release of these organisms into the environment could constitute a significant risk to biodiversity and may cause the unintended spread of GM organisms across national borders.

The Cartagena Protocol on Biosafety, an international agreement originally …

Jack Balkin's Interaction Theory Of “Commerce”, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the Commerce Clause. He claims that “commerce” meant “social interaction.” In this article I show why this theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “interaction,” and “interaction” to “affecting.” This triple reduction distorts rather than illuminates the original meaning of “commerce.” And Balkin omits from his discussion the massive amounts of evidence of contemporary usage—along with dictionary definitions of “intercourse”—establishing that “commerce” …

Epic Considerations: The Speech That The Supreme Court Would Not Hear In Snyder V. Phelps, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

In declining to consider the “epic” posted by the Westboro Baptist Church on its web site, the Supreme Court took most (but not quite all) of the good constitutional stuff out of Snyder v. Phelps.  The Court may have sought to make this an easy case by considering only the contents of the church’s picketing placards.  For the Court, the placards highlighted such issues of public import as “the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy.”  On grounds that we …

Doing Too Much: The Standard Deduction And The Conflict Between Progressivity And Simplification, John R. Brooks

Georgetown Law Faculty Publications and Other Works

In U.S. federal income tax, the standard deduction, along with the personal exemptions, provides taxpayers with a minimum amount of untaxed income, effectively creating a "zero bracket amount." For historical and political reasons, however, the standard deduction also operates as a simplified substitute for the itemized deductions, such as the deductions for extraordinary medical expenses, charitable contributions, and home mortgage interest. This seemingly reasonable compromise in fact leads to substantial, and surprising, conceptual complexity. In particular, close analysis of each of the two roles shows that their effects, and related criticisms, are often contradictory, which in turn makes it difficult, …

What Is Originalism? The Evolution Of Contemporary Originalist Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused–-with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist …

Unearthing The Inner Compass, Kimberly Ann Kapalka

Graduate Student Theses, Dissertations, & Professional Papers

The process of composing a body of artwork was to prove my artistic ability and prepare work for submission to artist-in-residence programs. To achieve this goal, I committed eleven months to this project. Inspiration for pieces came from my travels, interests in American Indian culture, wildlife, trees, photographs, and still-life objects. I devoted as much time as possible in my make-shift apartment studio working on art. Balancing career and home activities was a habitual challenge. I learned to trust my intuition while creating art making choices that reflected my intended message. Fear of public opinion floated through my mind as …

Empowerment Through Voice: A Case Study In The Leadership Of Restorative Justice, Kim Dalene Harding

Graduate Student Theses, Dissertations, & Professional Papers

This qualitative case study identified shared leadership as a necessary component in the sustenance of restorative justice, a reform justice model used at Ada County Juvenile Court Services located in Boise, Idaho. Within each of its divisions, ACJCS utilizes this shared leadership model. At this court, leadership capacity was built though encouraging team members to take initiative and show innovation. Community capacity was built by the creation of networks with other private and county agencies, providing both leadership opportunities and community service hours for offending youth. Shared leadership sustains this reform justice model by allowing leaders to become followers and …

Different Challenges And Different Blessings: Life Experiences Of Young Mothers Of Children With Down Syndrome, Janice Driscoll Nugent

Graduate Student Theses, Dissertations, & Professional Papers

Life experiences of young mothers of preschool aged children with Down syndrome were explored in this qualitative narrative study. Intensive interviews of four purposefully chosen young women were conducted. The findings of this study illustrate the impact of a preschool aged child with Down syndrome on the life of a young woman.

A variety of themes were identified. The primary themes were the background of the woman, including her public school experience, learning of the diagnosis of Down syndrome, supports, the child's medical complications, learning to cope and the impact of that disability on their day-to-day lives.

Child care and …

Temporal And Spatial Variation Of Fine Sediment Infiltration In A Gravel-Bed River, Elena Gronli Evans

Graduate Student Theses, Dissertations, & Professional Papers

Pulses of fine sediment in gravel-bedded rivers can cause extensive fine sediment infiltration (FSI), potentially altering river morphodynamics and aquatic ecosystems. FSI occurs when sand and silt are deposited into void spaces between larger grains at the riverbed. Flume and theoretical modeling provide a background for a conceptual model of FSI in natural systems. In this model, FSI will occur to a limited depth as a function of the relative grain size of bed sediment to infiltrating sediment. At a larger scale, fine sediment supply, feed rate and local flow dynamics also dictate the extent of FSI. In 2008, the …

The Impact Of Nclb Reforms In The Elementary Schools Comparing Perceptions/Practices From 2002 To 2011, Judith L. Gosnell-Lamb

Graduate Student Theses, Dissertations, & Professional Papers

With the advent of No Child Left behind in 2002, public education in the United States entered into a reform movement with mounting consequences and ramifications. This unprecedented federal in-road into public education became the umbrella regulator over programs, staff, budgets and students. The purpose of this quantitative study was to determine to what extent NCLB had impacted educational leadership and classroom practices as educators have strived to serve their students and the federal mandates at the same time.

A request for participants went out over the internet to over 1000 elementary principals. Asking if they had been in the …

Under The Bridge: A Qualitative Investigation Of Homeless Persons' Perspectives On Substance Abuse And Its Treatment, Amanda Beth Taylor

Graduate Student Theses, Dissertations, & Professional Papers

Although homelessness is generally thought of as an urban problem, it is also a growing problem in rural areas, such as Missoula, Montana (Jacobson 2010). Studies of urban homelessness indicate that substance abuse is a part of life for many homeless individuals, and the barriers to substance abuse treatment are exacerbated by being homeless (Snow and Anderson 1993; Morrell 2007). “Prevalence studies estimate that the percentage of homeless people with alcohol use disorders to be at 30%-40% and drug abuse at 10%-15%” (Fisk, Raakfeldt, and McCormack 2006: 480). Substance abuse is also common among homeless individuals in rural areas, including …

Utilitarian And Industrial Ceramics Of Montana In The Late Nineteenth And Early Twentieth Centuries, Matthew Gregory Sadorf

Graduate Student Theses, Dissertations, & Professional Papers

This thesis answers the question: What type of utilitarian and industrial ceramics were being produced or brought into Montana in the late nineteenth and early twentieth centuries? This question came from correspondences with the Montana Historical Society where the main research took place. This research was conducted in the Montana Historical Society archives which consisted of files and other sources to find evidence of ceramic production within the state. Further research was done to get an understanding of clays and ceramic production for this period of time. This thesis presents the information by first addressing clays, and then moving into …

Wolves And Livestock: A Review Of Tools To Deter Livestock Predation And A Case Study Of A Proactive Wolf Conflict Mitigation Program Developed In The Blackfoot Valley, Montana, Peter Douglas Brown

Graduate Student Theses, Dissertations, & Professional Papers

The recent recovery of wolves in the Northern Rocky Mountains (NRM) was met with opposition from the ranching communities throughout Montana. This was not surprising, due to the fact that wolves are feared as a predator of livestock and therefore represent a direct economic loss for ranchers that experience depredations by wolves. Wolves are also revered as a native predator that have top down effects upon natural prey species. This in turn affects the web of plants and animals that make up natural ecosystems. This fact, as well as the strong emotional connection that some stakeholders have to wolves creates …

The Statistical Relationship Among Number Sense, Computational Fluency, And Montana Comprehensive Assessment System, Amy Jo Burland

Graduate Student Theses, Dissertations, & Professional Papers

According to recent studies, less than half of U.S. students perform at the proficient or advanced levels in mathematics by the time they reach grade 4 and the trend continues through high school. In order to improve instruction many districts have adopted scientifically based researched programs such as Response to Intervention (RTI), which allows for the examination of the effectiveness of the core curriculum that is being used in a school or classroom. In addition, RTI provides school administrators and teachers with educational tools to identify students who may be at-risk of failing and to inform teachers of supplemental instruction …

Organic Tracer Analyses And Receptor Modeling Of Pm2.5 In Fairbanks, Alaska, James Kevin Ormord

Graduate Student Theses, Dissertations, & Professional Papers

Ambient particulate matter (PM) levels are of great importance to many areas around the world for both environmental and health concerns. It is well known that many sources of PM are anthropogenic in nature, including sources such as the combustion of petroleum products and wood. As per the Clean Air Act of 1970, the US EPA has established a National Ambient Air Quality Standard (NAAQS) of 35µg/m3 for a 24 hour average and 15µg/m3 for an annual average of ambient PM2.5 to improve the quality of air and reduce occurrences of respiratory illness resulting from exposure to high levels of …

Pitch Contour Of Japanese Traditional Verse, Shiho Yamamoto

Graduate Student Theses, Dissertations, & Professional Papers

In this thesis I conduct experiments to investigate how pitch pattern is realized in Japanese Traditional Verses. My observation consists of four parts: (i) investigation of lexical pitch and accentual combinations of Contemporary haiku in prose and in verse (ii) investigation of lexical pitch and accentual combinations of Basho’s traditional haiku (iii) observation of Nonsense haiku and (iv) pitch range measurements of Contemporary haiku in prose and in verse. As a result, the following characteristics are found: Japanese speakers (i) tend to recite Contemporary haiku that include familiar lexemes with expected pitch patterns, compared with Basho’s Traditional haiku that include …

International Law In A Kaleidoscopic World, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

International law is developed and implemented today in a complicated, diverse, and changing context. Globalization and integration, fragmentation and decentralization, and bottom-up empowerment are arising simultaneously among highly diverse peoples and civilizations. Most importantly, this period is characterized by rapid and often unforeseen changes with widespread effects. Advances in information technology make possible ever shifting ad hoc coalitions and informal groups and a myriad of individual initiatives.

The Supreme Constitutional Court Of Egypt: The Limits Of Liberal Political Science And Cls Analysis Of Law Elsewhere, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

On January 25th 2011, following a popular uprising, president Hosni Mubarak of Egypt was forced to relinquish power after thirty years of continuous rule. The popular uprising came to be known as the Egyptian revolution of January 25th marking the first time in the modern history of Egypt an authoritarian ruler is forced out of power through the mobilization of Egyptian masses. The popular mobilization came at the heels of several years of “wildcat” workers' strikes affecting various sectors of the economy, public and private, as well as recurring demonstrations spearheaded by the youth of the Egyptian middle class demanding …

Shall We Overcome? "Post-Racialism" And Inclusion In The 21st Century, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

The subject of "post-racialism" has been rather topical since Barack Obama was elected President. I greatly appreciate this opportunity to reflect on the extent to which Americans have, or have not, transcended race. The topic interests me tremendously because for many years I have been an advocate for race and class integration, which I addressed at length in my book The Failures of Integration. In The Failures, my main argument for pursuing meaningful integration is that a nation premised on race and class separation renders the "American Dream" of residential choice leading to upward mobility impossibly expensive and …

Constitutional Hypocrisy, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

My legal realist inclinations leave me largely agnostic about the particular provisions that happen to be included in any particular constitution. That is because both written and unwritten constitutions seem more likely to reflect than to prescribe the normative values of the cultures that adopt them. As a result, the substantive, structural, and procedural provisions of the present United States Constitution seem perfectly adequate to promote justice-at least in a culture that is genuinely committed to the cause of justice. No constitution is likely to promote justice in a culture that lacks such a commitment. Nevertheless, there is one change …

Do Ceos And Principal Financial Officers Take A "Bath" Separately Or Together?: An Investigation Of Discretionary Accruals Surrounding Appointments Of New Ceos And Pfos, Marshall A. Geiger, David S. North

Accounting Faculty Publications

This study presents the first targeted examination of changes in financial reporting surrounding the appointment of both new CEOs and Principal Financial Officers (PFOs). We identify companies that appoint new CEOs and PFOs in the period 1995 to 2002 and find that the change in discretionary accruals is negative and significant in the year of hire (from t-1 to t) for firms appointing a new CEO or both a new CEO and PFO (i.e., the "big bath"), but not for firms appointing only a new PFO. We also find that firms appointing both executives in the same year report significant …

The Influence Of Irrelevant Information On Is Auditor Key Risk Factor Predictions, Daniel D. Selby

Accounting Faculty Publications

Can information systems (IS) auditors ignore irrelevant information when they assess key risk factors (KRFs)? Irrelevant information is information that is of little or no value to a specific task or predicted future outcome. When assessing a KRF, IS auditors sift through numerous pieces of information to target items that are relevant to understanding the KRF. Some items encountered by IS auditors may be relevant to understanding the KRF, while other items encountered may be irrelevant. IS auditors should ignore irrelevant information when they assess KRFs.

An example of irrelevant information that an IS auditor may encounter during a financial …

The Effect Of Audit Committee Independence On The Distribution Of Earnings Levels And Changes, Daniel Gyung Paik, Daniel D. Selby

Accounting Faculty Publications

This study investigates whether audit committee independence affects the distribution of earnings levels and changes. We compare the distribution of earnings levels and changes of firms with majority independent audit committees to those of firms with minority independent audit committees. We use the distribution of earnings between the two types of firms to examine whether the high frequency of small earnings increases (and/or profits) relative to small earnings decreases (and/or losses) reported by public firms will be attenuated by the existence of the independent audit committee. We expect that audit committee independence effectively monitors management's discretionary behavior so that firms …

H. L. A. Hart’S Moderate Indeterminacy Thesis Reconsidered: In Between Scylla And Charybdis?, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article, in the context of the fiftieth anniversary of H. L. A. Hart’s The Concept of Law, The author reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, the author intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases,” which resembles Aristotle’s “doctrine of the mean”; second, to criticize his thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; …