Digital Commons Network^™

The Gravitational Force Of Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies …

Proportionality In Constitutional And Human Rights Interpretation, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer …

Egypt's New Constitution: The Islamist Difference, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The paper discusses the distributional impact of the rules of the new Egyptian constitution (2012). It specifically addresses the way such rules, substantive and (potentially) procedural, can influence Egyptian law's identity and the underlying relations between the state and individuals and among individuals themselves that such identity implies.

The Sad Story Of The Northern Rocky Mountain Gray Wolf Reintroduction Program, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

A reflection on the past, present and future of environmental law in this 20th Anniversary Edition offers an opportunity to revisit the Endangered Species Act, particularly the Northern Rocky Mountain States federal wolf reintroduction program. Environmental programs that depend on public support for their effectiveness are problematic when the government fails to understand and compensate for this fact. This essay explores the proposition that the federal government's failure to anticipate and respond to the negative reaction of people adversely affected by proposed solutions to environmental problems is contributing to a lack of progress despite great strides in our scientific understanding. …

The Dormant Second Amendment: Exploring The Rise, Fall, And Potential Resurrection Of Independent State Militias, Michael J. Golden

Georgetown Law Faculty Publications and Other Works

The term “militia” is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias’ substantial evolution over four centuries.

Historically, militia simply refers to a broad-based civic duty to protect one’s fellow citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia’s true meaning and purpose—and reinvigorating independent state militias in the United States to effect that purpose—has the potential to address states’ emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. …

Taxation, Risk, And Portfolio Choice: The Treatment Of Returns To Risk Under A Normative Income Tax, John R. Brooks

Georgetown Law Faculty Publications and Other Works

Many articles in the legal and economic literature claim that a pure Haig-Simons income tax cannot effectively tax investment income. This is because an investor can use leverage to gross up her investments in risky assets such that the increased gain (or loss) exactly offsets any income tax (or deduction) on the returns to risk-taking. This article argues, however, that while it is possible for an investor to make such portfolio shifts, she almost certainly will not because of the increased risk of doing so.

Central to any discussion of the effects of taxation on investment risk-taking is the meaning …

Ipos And The Slow Death Of Section 5, Donald C. Langevoort, Robert B. Thompson

Georgetown Law Faculty Publications and Other Works

Since its enactment, Section 5 of the Securities Act of 1933 has restricted sales-based communications with investors, but that effort is nearly dead even with respect to the most sensitive of offerings, the IPO. Our paper traces that devolution, which began almost as soon as the ’33 Act came into existence, though the SEC’s 2005 deregulatory reforms and Congress’ intervention in the JOBS Act of 2012. We show how much of this related to an embrace of “book-building” as the industry’s preferred method of price discovery, which requires private two-way communications between underwriters and potential sophisticated investors. But book-building (and …

Judges! Stop Deferring To Class-Action Lawyers, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The idea for this article came from the author's representation of a national non-profit consumer rights organization in a federal appeal challenging a district court’s approval of a class-action settlement. The organization's appellate briefs argued that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ views, the settlement was "fair, reasonable, and adequate" (which is the standard for class-action settlement approval under Federal Rule of Civil Procedure 23(e)). The district court also deferred to the lawyers' reputations as talented and honest lawyers.

In this article, …

The Wonder-Clause, Anna Gelpern, Mitu Gulati

Georgetown Law Faculty Publications and Other Works

The Greek debt crisis prompted EU officials to embark on a radical reconstruction of the European sovereign debt markets. Prominently featured in this reconstruction was a set of contract provisions called Collective Action Clauses, or CACs. CACs are supposed to help governments and private creditors to renegotiate unsustainable debt contracts, and obviate the need for EU bailouts. But European sovereign debt contacts were already amenable to restructuring; adding CACs could make it harder. Why, then, promote CACs at all, and cast them in such a central role in the market reform initiative? Using interviews with participants in the initiative and …

The Protected Profits Benchmark: Responses To Comments, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In my earlier article, I proposed the “Protected Profits Benchmark” (PPB) price standard for determining whether or not a vertically integrated monopolist is engaged in a refusal to deal or price squeeze in violation of Section 2 of the Sherman Act. The PPB would be used where market benchmarks do not exist or do not apply. Violating the PPB price involves profit-sacrifice, which suggests anticompetitive animus. When products are homogeneous, a wholesale price that violates this price standard would exclude an equally efficient entrant. As a result, there will be less competition in the downstream (output) market in which the …

Regulation Of Dispute Resolution In The United States Of America: From The Formal To The Informal To The ‘Semi-Formal’, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The story of ADR in the US is one of ‘co-optation’ of what was to be a serious challenge to formalistic and legalistic approaches to legal and social problem solving and is now highly institutionalized by its more formal use in courts. At the same time, use of private forms of dispute resolution in mediation, arbitration and newly hybridised forms of dispute resolution among disputants who can choose (and afford) to leave the formal justice system (in both large commercial matters and private family matters) has resulted in claims of increased privatization of justice, with consequences for access to …

Banks And Governments: An Arial View, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Financial systems and public treasuries are communicating vessels: strength or weakness in one flows to the other, and back. This chapter considers the implications of this insight using case studies from Europe, Asia, and Latin America. The connection is not unique to Europe, although it does not always result in feedback effects, or the ‘doom loop’ that has made headlines since 2010. Events now known as banking or government debt crises often have had elements of both, and could have gone either way. Policy and political choices determined their path. In all cases, governments were as indispensable for resolving banking …

Originalism And The Unwritten Constitution, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and …

Women’S Water, Women’S Work: Evaluating Decentralized Management Of Deep Borehole Wells For Improved Rural Water Access In Tawa Fall Village, Senegal, Tenly Elizabeth Snow

Graduate Student Theses, Dissertations, & Professional Papers

Throughout the developing world, countries face a number of issues regarding the health and welfare of their populations. One issue that stands out with critical and growing importance is the availability-and accessibility-of water. Across the Sahel, access to potable water for domestic use, as well as contaminant-free water for agricultural and animal husbandry purposes is of growing concern. This study evaluates Government of Senegal efforts at improving rural water access through public-private operation contracts to manage deep groundwater resources. In West Africa, Senegal currently counts itself among the few Sahelian countries having sufficient freshwater supplies to support its population’s growing …

The Relationship Between School Board Governance Behaviors And Student Achievement, Ivan J. Lorentzen

Graduate Student Theses, Dissertations, & Professional Papers

This non-experimental quantitative study examined the relationship between school board governance behavior (i.e. boardsmanship) and student achievement scores. Pearson's r correlation was utilized to examine the relationship. Boardsmanship was defined by scores on the Board Self-Assessment Survey (BSAS) © designed by, and used with permission from, the Washington State School Directors Association (WSSDA). The BSAS consisted of a 69 item survey organized around 5 board Standards, 22 Benchmarks, and 69 Key Indicators (i.e. survey items). Board members from all 121 high school districts in Montana were invited to participate in the online survey. Seventy-four board members from 27 school districts …

The Impact Of High School Principal's Technology Leadership On The Sustainability Of Corporate Sponsored Information Communication Technology Curriculum, Bruce Ryan Gottwig

Graduate Student Theses, Dissertations, & Professional Papers

The proliferation of information communication technology (ICT) has placed educational institutions in the forefront in educating and training students as skilled consumers, engineers, and technicians of this widely used technology. Corporations that develop and use ICT are continually building a skilled workforce; however, because of the growth and ultimately the need for a strong, skilled workforce they are reaching out to educational institutions to help bridge the gap in building this need. Corporations such as Cisco Systems, Microsoft, Oracle, Adobe, VMware, and others developed curricular programs that offer both K - 12 and higher education a means to educate and …

Color/Shape/Form/Space, Brett James Hargesheimer

Graduate Student Theses, Dissertations, & Professional Papers

Color/Shape/Form/Space begins at its title. The show is named with the same directness that I want the work to have: accessible, ready for consumption. Stripped of unnecessary information, the exhibition’s title needed to match the work itself, which expresses minimalistic tendencies, avoiding the superfluous. Everything needed to be consciously put together to operate as a well-designed whole. Simple and clear. It is the age that we live in that prompts me to be so forthright. Our present is defined by attention deficit digital connectivity. Accessibility and information sharing are rampant. With the possibilities being seemingly endless, it is an exciting …

Statistical Modeling Of Rare Stochastic Disturbance Events At Continental And Global Scales: Post-Fire Debris Flows And Wildland Fires, Karin Lynn Riley

Graduate Student Theses, Dissertations, & Professional Papers

Chapter 1: Frequency-magnitude distribution of debris flows compiled from global data, and comparison with post-fire debris flows in the western U.S. Forecasting debris flow hazard is challenging due to the episodic occurrence of debris flows in response to stochastic precipitation and, in some areas, wildfires. In order to facilitate hazard assessment, we have gathered available records of debris flow volumes into the first comprehensive global catalog of debris flows (n = 988). We also present results of field collection of recent debris flows (n = 77) in the northern Rocky Mountains, where debris flow frequency increases following wildfire. As a …

Silent Sentinels: Archaeology, Magic, And The Gendered Control Of Domestic Boundaries In New England, 1620-1725, C. Riley Auge

Graduate Student Theses, Dissertations, & Professional Papers

The following dissertation is an historical archaeological study of the material culture of gendered protective magic used by Anglo-Europeans in seventeenth-century New England as a tactic to construct boundaries that mitigated perceived personal, social, spiritual, and environmental dangers. Such boundary construction was paramount in the seventeenth-century battle between good and evil epitomized by the belief in and struggle against witchcraft. This dissertation sought to answer three interrelated research questions: 1) What constitutes protective magical material culture in seventeenth-century contexts and how is it recognizable in the archaeological record? 2) What signifies gender specific protective magical practices and what can these …

Paying To Play: Supply Management In Montana's Dairy Industry, Laura Ginsburg

Graduate Student Theses, Dissertations, & Professional Papers

Montana’s dairy industry is unique among US states because of its supply management program, which allocates quota to limit how much fluid milk can be produced and sold within the state. The amount of quota is set and price varies with market conditions; therefore, quota adds to a farm’s production costs. This paper presents findings from in-depth interviews with 17 dairy farmers to learn how quota has affected on-farm decision-making and how they perceive the impacts of quota on the statewide industry. Farmers tend to be spilt between those who think it affected their on-farm decisions and those who felt …

The Equivalence Of Economies And Returns To Scale Revisited: Nonlinear Expansion Paths And The Definition Of Scale

Journal of Economics and Finance Education

That increasing returns to scale is a sufficient condition for generating economies of scale is well understood. Many instructors and most textbooks, however, report that increasing returns is a necessary condition for scale economies. While the necessity of decreasing returns in generating diseconomies of scale can be proven locally for smooth technologies or generally for homothetic or non-variable returns technologies, no such requirement exists when considering discrete scale adjustments along more realistic expansion paths. We argue that the practice of equating economies and returns to scale is an inappropriate generalization that resulted from a historical preference for homothetic production functions.

Expanding, Refining, And Replicating Research On High School Gay-Straight Student Alliances And Sexual Minority Youth, Nicholas Christopher Heck

Graduate Student Theses, Dissertations, & Professional Papers

Sexual minority youth are at-risk for engaging in negative health behaviors and for experiencing at-school victimization. Specific benefits of attending a high school with a gay-straight student alliance (GSA), including lower risk for suicide, fewer alcohol problems and lower levels of psychological distress, have been reported. Limitations in the previous research studies, especially the use of retrospective designs, small sample sizes, and samples limited to a single geographic region, call into question the generalizability of these benefits. In an effort to overcome the aforementioned limitations, this analysis of data from 316 sexual minority high school students identified individual/family-, community-, and …

Measuring Visual Literacy Ability In Graduate Level Pre-Service Teachers, Teresa Farrell

Graduate Student Theses, Dissertations, & Professional Papers

Farrell, Teresa, Ed.D., August 2013 Curriculum and Instruction Measuring Visual Literacy Ability in Graduate Level Pre-service Teachers Chairperson: Dr. Marian J. McKenna The field of visual literacy has been active since its inception in 1969 by John Debes and members of various fields of study such as science, mathematics, psychology, education, and the arts forming the International Visual Literacy Association (IVLA). Recognizing that modern society is increasingly visual by nature, and with the advances in digital technologies, visual literacy is becoming an area of critical importance in education. Although much work has been done within the field to define it …

Mechanisms And Cytotoxic Effects Of Nqo1-Directed Lavendamycin Derivatives And Mitochondria-Targeted Anthracenyl Isoxazole Amides As Novel Antitumor Agents, Alison King Kearns

Graduate Student Theses, Dissertations, & Professional Papers

Cancer is a common, complex, and oftentimes fatal disease. Despite extensive research in the field of cancer drug discovery, there are still improvements to be made in the design of effective anticancer agents. This project involved three separate but related studies that fall under the category of anticancer drug discovery as a whole. The overall goal of this project was to design and investigate the mechanisms of action of new antitumor agents to be used against solid tumors. First, we developed a series of anthracenyl isoxazole amides (AIMs) designed to bind to G-quadruplex DNA and inhibit telomerase. Results from this …

Activity-Based Exposure Assessments To Libby Amphibole Associated With Public And Occupational Tasks In The Kootenai National Forest And Weatherization Of Homes Containing Vermiculite Attic Insulation, Julie Faroni Hart

Graduate Student Theses, Dissertations, & Professional Papers

Up to 80% of the world's supply of vermiculite was produced from a mine near Libby, MT. A common use for expanded vermiculite was loose fill insulation in attics and walls. Unfortunately, vermiculite from the Libby mine was contaminated with amphibole asbestos minerals referred to as Libby amphibole, LA. Fifteen years after the closure of the vermiculite mine, substantial (14 - 110 million structures/cm2) LA contamination was discovered on the surface of tree bark in the forested areas surrounding the former mine. Research was conducted to evaluate the potential for LA exposure associated with tree bark and vermiculite attic insulation …

The Electronic Silk Road: How The Web Binds The World In Commerce, Anupam Chander

Georgetown Law Faculty Publications and Other Works

On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world?

In this accessible book, cyber-law expert Anupam Chander provides the first thorough …

Why Changing Norms Is A More Just Solution To The Failed International Regulatory Regime To Protect Whales Than A Trading Program In Whale Shares, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Whales capture the public's imagination like no other wild animal. They have played a central role in "the social construction of modern ecological thought." Indeed, the survival of whales has been a symbol of the environmental movement since the latter quarter of the twentieth century, when the "slogan 'save the whales' was a call to arms to save the planet from humanity's folly. " Stories about whale conservation implicate cultural clashes, interspecies morality, and global politics. They offer lessons in how not to manage a natural resource, and simultaneously show how both governmental and individual activism can overcome this mismanagement …

Honor And Destruction: The Conflicted Object In Moral Rights Law, Sonya G. Bonneau

Georgetown Law Faculty Publications and Other Works

In 1990, the Copyright Act was amended to name visual artists, alone among protected authors, possessors of "moral rights," a set of non-economic intellectual property rights originating in nineteenth-century Europe. Although enhancing authors' rights in a user-oriented system was a novel undertaking, it was rendered further anomalous by the statute's designated class, given copyright's longstanding alliance with text. And although moral rights epitomize the legacy of the Romantic author as a cultural trope embedded in the law, American culture offered little to support or explain the apparent privileging of visual artists over other authors. What, if not a legal or …

The Developmental Path Of The Lawyer, Michael J. Cedrone

Georgetown Law Faculty Publications and Other Works

My mother does not drive, and I own a towel that I cannot use-these are my reasons for studying law.

I am an integrated tapestry of elation and disappointment, risk and reward, ambiguity and conviction .. .. I discovered [through adversity] that transitional challenges were not permanent impediments to my progress, but were instead emboldening catalysts to my personal evolution and professional development.

These two stories come from admissions essays submitted by members of Georgetown University Law Center's class of 2014, recently published in the Law Center's alumni magazine. The published essays provide fascinating views into the personal experiences and …

Discussion Boards: Boring No More!, Deborah S. Adelman, Debbie Conner

All Faculty and Staff Scholarship

Creating discussion boards (DBs) that capture student imaginations and contain meaningful interactions can be a difficult process. Traditional DBs use a question-and-answer format that often is boring for both the student and instructor. The authors present creative approaches to DBs that result in lively debates and student-to-student and student-to-faculty interactions, including role playing, blogging, wikis, and the use of voice.