Digital Commons Network^™

What Might Contract Theory Be?, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Few contract theories begin with so comprehensive a discussion of method as does Stephen Smith’s book, Contract Theory. In the first chapter, “What Is Contract Theory,” Smith describes an interpretive approach guided by four goals: fit with the existing law, internal coherence, moral attractiveness, and transparency to legal actors.

This chapter in Understanding Private Law: Essays in Honour of Stephen A. Smith, does a deep dive into Smith’s description and defense of those goals. Smith pictures the contract theorist as an observer standing outside legal practice, interpreting the law but not participating in it. That picture results in …

Mind The Gap(S): Mitigating Harassment In A Post-#Metoo Workplace, Jamillah Bowman Williams, Elizabeth C. Tippett, Anu Ramdin

Georgetown Law Faculty Publications and Other Works

In a post-#MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by many workers—particularly those in the most vulnerable jobs. Even when reform efforts are introduced through legislation, courts, and agency guidance, it often does not provide greater power, autonomy, and dignity to women in ways that would more meaningfully protect them from workplace abuse. We are the first to create a database of state legislation, including over three thousand bills, that allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo movement. …

The Scope Of The Prior Art, John R. Thomas

Georgetown Law Faculty Publications and Other Works

The courts and the U.S. Patent and Trademark Office (“USPTO”) assess whether an invention may be patented by comparing it to the state of the art, which the patent community terms the “prior art.” Heavily influenced by Oliver Wendell Holmes Jr. and Learned Hand, and more recently expanded by the America Invents Act, the Patent Act features the broadest definition of prior art in U.S. history. No matter how remote, evanescent, or obscure, any activity or publication that occurs one day before the inventor files a patent application—anywhere in the world—may prove patent-defeating.

The government also holds patent proprietors accountable …

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Georgetown Law Faculty Publications and Other Works

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Asking The Right Questions About Legal Finance In United States Aggregate Dispute Resolution, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance …

Patent Infringement In Time, John R. Thomas

Georgetown Law Faculty Publications and Other Works

No patent lasts forever. When intellectual property rights expire, a canonical principle states, all benefits of their ownership cease. But patents may cast a long shadow after they are gone, hindering the advent of immediate competition upon their expiration. The law acts unevenly in these circumstances, leading to questionable intellectual property and public health policies. Ordinarily competitors cannot make and use a patented invention until the patent's term has concluded. This delay ordinarily extends the effective period of exclusivity that the patentee enjoys. However, a statutory safe harbor shields from infringement acts undertaken "solely for uses reasonably related" to Food …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

What Is Trump Immunity?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Trump v. United States, the Supreme Court held that a former President is entitled to an immunity in criminal cases in certain circumstances. The decision has been heavily criticized, with many commentators saying it places the President above the law. Exactly how it does so depends on what type of immunity a former President enjoys. Is the immunity enjoyed by former Presidents in criminal cases an immunity from the operation of the primary obligations imposed by the criminal laws in question? Or is it an immunity from being subjected to certain types of sanctions for having violated validly …

Does The Original Meaning Of The Fourteenth Amendment Protect Economic Liberty?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In my remarks today, I will defend the proposition that the original meaning of the Fourteenth Amendment protects "economic liberty." To clarify the issue, let me being by defining economic liberty. I define economic liberty as the right to acquire, use and possess private property and the right to enter into private contracts of one's choosing. If these rights are protected by the original meaning of the Fourteenth Amendment, then we can conclude that the Amendment does protect economic liberty.

In my view, the evidence that the original meaning Fourteenth Amendment protects rights of private property and contract is overwhelming. …

Just Research And Citation, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Contemporary research and citation practices are often unjust. Data cartels like Westlaw and Lexis have parent companies that prioritize profits in ways that threaten immigrants. Even before the Dobbs decision, search engines could be deployed to weaponize data against pregnant people seeking reproductive care. Women and people of color have been legal scholars for more than a century but, as many scholars have observed, colleagues consistently under-cite, mis-cite or appropriate those scholars’ work with minimal recourse. Citation materials are often inaccessible to disabled people, poor people, or the public due to poor design, paywalls, or unpreserved content that falls prey …

De/Reconstructing Delinquency, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court …

Management Strategies To Improve Gastrointestinal Health And Productivity Of Native And Dairy-Derived Steers Fed In Confinement, Becca B. Grimes Francis

Electronic Theses and Dissertations

The objective of this dissertation was to evaluate strategies to mitigate metabolic disorders in confinement fed steers. The first study was conducted on yearling beef steers to investigate the effect of a rumen buffer, calcium magnesium carbonate (CMC), when fed with or without tylosin phosphate (TYL), on growth performance, rumination activity and liver abscess prevalence. Supplementation of a rumen buffer was not an effective alternative to a feed-grade antimicrobial for the control of liver abscesses in beef steers. Supplementation of CMC reduced DMI, thus negatively influencing BW and ADG. No associative effects of CMC and TYL were observed for any …

Discovery Of Photosynthetic Oxic N2-Fixation In Cyanobacteria Using Wet Lab And Machine Learning Approaches, James A. Young Iii

Electronic Theses and Dissertations

No abstract provided.

An Integrated Wetland Condition Index And Environmental Metric Framework For The Prairie Pothole Region, Mercedes L. Batalla

Electronic Theses and Dissertations

The USDA-NRCS Agricultural Conservation Easement Program (ACEP) assists landowners with protecting, restoring, and enhancing wetlands. Evaluating wetland conservation efforts is crucial for informing future management decisions. However, assessment frameworks vary across regions and among stakeholders. The Prairie Pothole Region is an ecologically unique landscape characterized by its abundance of wetlands that provide important ecosystem services. To evaluate wetlands enrolled in ACEP, I sampled forty-five semi-permanent wetlands in the Prairie Pothole Region from July – August 2023 and 2024. I selected and sampled twenty-six wetlands enrolled in ACEP. Nineteen additional wetlands not enrolled in ACEP were also sampled; these included nine …

The Formation And Degradation Of Carboxysomes During Heterocyst Development In Filamentous Cyanobacteria, Maxwell Anton Jakubiak

Electronic Theses and Dissertations

Photosynthetic carbon (CO2) fixation and solar-powered nitrogen (N2) fixation are foundational biochemical processes that introduce essential elements into the biosphere. While atmospheric dinitrogen gas (N2) is unusable to most organisms, diazotrophs utilize the nitrogenase enzyme to reduce N2 to ammonia. Because all known nitrogenases are highly susceptible to irreversible oxygen inactivation, N2 fixation is generally incompatible with oxygenic photosynthesis. However, several cyanobacteria are both photosynthetic and diazotrophic, balancing these opposing metabolisms by temporally or spatially separating the respective enzymes. Anabaena sp. PCC 7120 is a model multicellular cyanobacterium that grows in filaments of photosynthetic vegetative cells, which respond to nitrogen …

Simulating Positive Ion Distribution In The Protodune Single Phase Detector, Vishnu Pfeiffer

Electronic Theses and Dissertations

This work covers the validation and implementation of a model to solve for argon ion (Ar+) distribution in the ProtoDUNE-SP liquid argon time projection chamber (LArTPC). ProtoDUNE-SP undergoes a constant flux of cosmic ray muons due to surface operation. The performance of the ProtoDUNE-SP provided valuable insights into single-phase technology, membrane cryostat technology, and calibration of cryogenic instrumentation. Still, challenges in achieving precise measurements persist due to the space charge effect—the distortion of the electric field within the detector due to the accumulation of positive argon ions generated from constant cosmic muon flux. The overarching goal of this thesis is …

Learning Positive Deviance Techniques: How Non-Conformity To Vote-Buying Is Practiced And Its Outcomes, The Ugandan Context, Collins Kwarisima

Electronic Theses and Dissertations

This research has investigated the use of positive deviance or exemplary behavior as an innovative approach to addressing political corruption, specifically the vote-buying practice in Uganda. To understand the techniques of positive deviance in vote-buying, this study was guided by the main research question: How is non-conformity to vote-buying practiced, and what are its outcomes? Individual and focus group interviews were utilized to collect qualitative data from 40 respondents (voters and political leaders) who deter the vote-buying practice in Rukungiri District, Western Uganda. With the help of community gatekeepers, the study followed the inclusion criteria to identify voters and political …

Developing Proportional Hazards Mixture Cure Models And Predicting Risk For Persons With End-Stage Kidney Disease, Nathan Meyer

Electronic Theses and Dissertations

Traditional survival analysis techniques assume that all individuals will eventually experience the event of interest. This is as opposed to allowing for a subset of cured individuals. Hence, we consider a mixture cure model that can allow a subset of people to be cured of the disease and will never experience the event of interest. This gives a more accurate interpretation of survivability by analyzing both the shortand long-term effects of a set of variables on the individuals’ survival probabilities. However, the cure status is considered an unknown variable. Thus, the expectationmaximization algorithm is required to estimate this latent variable …

Molecular Dynamics Simulations Of Key Parameters On Thermal Properties Of Carbon Nanotube Modified Epoxy Composites, Lida Najmi

Electronic Theses and Dissertations

The application of carbon nanotube (CNT)-reinforced epoxy matrix composites (CRECs) has attracted extensive attention in various industrial sectors due to the significant improvement of material properties imparted by CNTs. The thermal behavior of these nanocomposites is governed by complex heat transfer mechanisms operating at different scales, resulting in a complex relationship between the effective thermal response and the microstructural characteristics of the composite. In this study, molecular dynamics (MD) simulations were used to investigate the thermal conductivity of CRECs, focusing on the effects of key parameters such as the length and volume fraction of CNTs, the degree of cross-linking within …

Review: The Shape Of Power: Stories Of Race And American Sculpture, Jiaying (Gloria) Dai

Art Inquiries

The Shape of Power: Stories of Race and American Sculpture, co-curated by Karen Lemmey,

Tobias Wofford, and Grace Yasumura, ambitiously asked: How does American sculpture

intersect with the history of race in the United States?1 Positioning itself as the first major survey

exhibition of American sculpture in decades, this exhibition featured 82 sculptures created by 70

artists spanning from 1792 to 2023.

The Failed Experiment Of §230 Of The Communications Decency Act: How It Facilitates Exploitation And How It Must Be Reformed, Mary Graw Leary

Scholarly Articles

Two truths coexist: The Internet has brought with it tremendous changes for learning, connection, and business; and the Internet and other digital platforms have led to an unprecedented exploitation of children on a scale never before imagined. This is due in large part to §230 of the Communications Decency Act – the law which tech platforms have perverted to immunize them from liability for their activity which causes extreme harm. This duality has led to a current vigorous debate about whether this 1996 law has any value in the 21st Century.

This article answers that question with a resounding no, …

Thinking Outside The Box With Ai: Adapting 20th Century Labor And Employment Law To 21st Century Algorithms That Select, Monitor, And Control Employees, Roger C. Hartley

Scholarly Articles

A transformative era is unfolding in the rapidly changing world of work. Increasingly, to a hitherto unimaginable degree, employers are able to deploy predictive analytics—artificial intelligence (AI)—that processes data about workers and their behaviors to identify patterns and make algorithmic predictions. There is a widely-held view among labor practitioners, scholars, and non- specialists that our current labor and employment regulatory scheme is insufficient to address many, perhaps most, of the workplace issues that workplace AI systems create. The thesis of this article is that skepticism is largely unfounded as it seriously underestimates the capacity of currently enacted federal labor and …

Deference And Discretion In Bank Regulation, Heidi Mandanis Schooner

Scholarly Articles

The U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine of judicial deference to administrative agencies’ interpretations of federal statutes, will impact future regulatory policy. The shape of that impact is less certain. Using bank regulation as a vantage point, this Article explores how the end of Chevron may influence legislative and regulatory outcomes. Through case studies, the Article contextualizes the impact of Chevron within the bank regulatory regime’s complex ecosystem of technical expertise, political influence, and industry capture. The dismantling of New Deal restrictions on banks’ activities illustrates how Chevron may have …

The Human Dimension Of “Home”, Robert A. Destro

Scholarly Articles

All societies provide a legal framework that protects the pivotal functions of home and family. None provide a clear legal definition of “home”. Nor, this article argues, can they. “Home” is a concept rooted in the lived experience of human persons. In this article, the second in a series, the author employs the “human dimension” [HDIM] concept, initially developed by the U.S. military and later adopted by the Organization for Security and Cooperation in Europe, as the lens through which one can examine the “human element” of human rights. The framework for this analysis is the “four clusters of value-types” …

Finding The Major Questions Doctrine, Chad Squitieri

Scholarly Articles

The major questions doctrine has been invoked primarily in the rulemaking context, where it requires agencies to identify particularly clear statutory authority before promulgating rules of “major” importance. Some scholars have suggested that the doctrine is a tool that should be limited to agency actions that are purportedly “legislative” in nature (e.g., rule makings)—meaning the doctrine would not apply in other contexts, such as agency adjudications and enforcement actions that may not be similarly “legislative.” This Essay responds by arguing that the major questions doctrine is best understood as a limit on executive authority—meaning the doctrine could apply across a …

Bringing The Antiquities Act Into The Modern Age, Chad Squitieri

Scholarly Articles

The Antiquities Act empowers the President both to declare national monuments and to reserve the “smallest area” of land compatible with the preservation of such monuments. Modern Presidents have adopted expansive interpretations of those authorities—purporting, for example, to reserve entire “ecosystems” as national monuments, and to claim that the Act’s reference to “land” includes state-sized swaths of the ocean floor. Until recently, Presidents’ expansive readings of the Act have gone largely unchecked by courts. But in Massachusetts Lobstermen’s Ass’n v. Raimondo, Chief Justice Roberts expressed interest in reconsidering “[t]he scope of the objects that can be designated under the [Antiquities] …

Informing Choice: The Role Of Adoption In Women’S Pregnancy Decision-Making, Elizabeth R. Kirk, Ryan Hanlon

Scholarly Articles

In the wake of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, the authors of this Article offer a practical, collaborative response to a seemingly intractable, divisive issue. Kirk and Hanlon draw on their academic expertise in law and social science, respectively, to address the paradox of the general esteem for the institution of adoption alongside the rarity with which adoption is chosen. In this Article, they examine social science data and literature on women’s pregnancy decision-making in order to explain the need for laws and policies that promote informed choice. They introduce never-before-published survey data and …

Charitable Giving And Civil Rights: A Defense Of Private Remedial Action, Roger Colinvaux

Scholarly Articles

Private charitable organizations have long enjoyed the freedom to determine their mission and render appropriate charitable assistance, including by taking race, ethnicity, gender, and other traits into account when responding to the harmful effects of past discrimination, a practice this Feature terms “private remedial action.” The legality of this kind of trait-conscious assistance is strongly supported by the early American history of trait-based associations, federal tax law, and core values of free association. However, new legal and political attacks on affirmative action of all types have put charities on the defensive, leading many groups to change their programs and behavior …

A More Luminous Beacon, William M.M. Kamin

Scholarly Articles

Over the Supreme Court’s past four Terms, federal post conviction habeas corpus has been placed on the chopping-block. Its fate hangs in the balance of an historical debate over the maxim, oft recited by the Court between 1830–1953, that post conviction habeas reaches only “jurisdictional defects” — as opposed to “mere error” — on the part of the convicting court. Justices Gorsuch and Thomas maintain that “jurisdiction” carried then the same narrow meaning it does now: power ab initio over the offense charged and the defendant’s person. Justices Kagan and Jackson contend that, in this context, “jurisdictional defect” was understood …