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Articles 1 - 30 of 100
Full-Text Articles in Law
The Constitution's Political Deficit, Robin West
The Constitution's Political Deficit, Robin West
Georgetown Law Faculty Publications and Other Works
Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative …
Implementing A Progressive Consumption Tax: Advantages Of Adopting The Vat Credit-Method System, Itai Grinberg
Implementing A Progressive Consumption Tax: Advantages Of Adopting The Vat Credit-Method System, Itai Grinberg
Georgetown Law Faculty Publications and Other Works
A credit–method value–added tax, a payroll tax, and a business–level wage subsidy can approximate the economic and distributional consequences of a subtraction–method X–tax. Such a credit–method progressive consumption tax has administrative advantages as compared to a subtraction–method progressive consumption tax, once certain political factors are taken into account. Further, unlike a subtraction–method system, a credit– method progressive consumption tax could easily interact with other tax systems around the world and comply with World Trade Organization rules without sacrifi cing best practice VAT design features that allow for effective enforcement.
How To Skip The Constitution, David Cole
How To Skip The Constitution, David Cole
Georgetown Law Faculty Publications and Other Works
No abstract provided.
The Ninth Amendment: It Means What It Says, Randy E. Barnett
The Ninth Amendment: It Means What It Says, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines thirteen …
Why The Court Said No, David Cole
Why The Court Said No, David Cole
Georgetown Law Faculty Publications and Other Works
No abstract provided.
In Case Of Emergency, David Cole
In Case Of Emergency, David Cole
Georgetown Law Faculty Publications and Other Works
No abstract provided.
Caveat Blogger: Blogging And The Flight From Scholarship, Randy E. Barnett
Caveat Blogger: Blogging And The Flight From Scholarship, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
These comments were delivered to the “Symposium on Bloggership” held at Harvard Law School on April 28, 2006. Professor Randy Barnett discusses the pros and cons of blogging by legal scholars.
Are We Safer?, David Cole
Are We Safer?, David Cole
Georgetown Law Faculty Publications and Other Works
No abstract provided.
What The Shutts Opt-Out Right Is And What It Ought To Be, Brian Wolfman, Alan B. Morrison
What The Shutts Opt-Out Right Is And What It Ought To Be, Brian Wolfman, Alan B. Morrison
Georgetown Law Faculty Publications and Other Works
This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement …
Unitariness And Myopia: The Executive Branch, Legal Process And Torture, Cornelia T. Pillard
Unitariness And Myopia: The Executive Branch, Legal Process And Torture, Cornelia T. Pillard
Georgetown Law Faculty Publications and Other Works
What promotes legality on the part of government under strain? This Article looks to the role of intra-executive processes in facilitating well-reasoned, legitimate conclusions on questions like the one addressed in this symposium: What are the legal authorities and limits governing coercive interrogation tactics? Admittedly, even the best legal processes are no guarantee of good substantive outcomes. Many critics would disagree with the substance of the executive's August 1, 2002, legal position on coercive interrogation no matter how it was derived. And even were all the best processes faithfully adhered to in developing the government's legal position on torture, it …
Defending The Unpopular Down-Under, Abbe Smith
Defending The Unpopular Down-Under, Abbe Smith
Georgetown Law Faculty Publications and Other Works
The ethics of criminal defence lawyers and others who represent 'unpopular clients' is a largely unexplored area of legal scholarship in Australia. This article seeks to examine, from a comparative perspective, the motivations and ethical practices of these lawyers. Using interviews with Australian lawyers who represent the criminally accused, prisoners and asylum-seekers, as well as relevant ethical rules and commentary, the article identifies why lawyers undertake unpopular cases and, ultimately, what sustains them. Contrasting Australian legal practice with that in the US, the article discusses the sometimes competing professional obligations to court and client, truth and advocacy, public and profession. …
Katrina, The Constitution, And The Legal Question Doctrine, Robin West
Katrina, The Constitution, And The Legal Question Doctrine, Robin West
Georgetown Law Faculty Publications and Other Works
In this paper I will not develop the case for constitutionally protected welfare rights - I have tried to do that elsewhere. Instead, I want to explore the tension between what I will take to be at least a plausible account of the state's Constitutional obligations to the poor, and what seems to me as at least equally self-evident, to wit, that no American court will discover and then impose such Constitutional obligations upon recalcitrant state or federal legislators. My conclusion will be pragmatic. I want to urge those who feel likewise regarding the Constitutional obligations of state actors, to …
Moral Conflict And Liberty: Gay Rights And Religion, Chai R. Feldblum
Moral Conflict And Liberty: Gay Rights And Religion, Chai R. Feldblum
Georgetown Law Faculty Publications and Other Works
My goal in this piece is to surface some of the commonalities between religious belief liberty and sexual orientation identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. I first want to make transparent the conflict that I believe exists between laws intended to protect the liberty of lesbian, gay, bisexual and transgender ("LGBT") people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. I believe those who advocate for LGBT equality have downplayed the impact of …
Race, Money And Medicines, Maxwell Gregg Bloche
Race, Money And Medicines, Maxwell Gregg Bloche
Georgetown Law Faculty Publications and Other Works
Taking notice of race is both risky and inevitable, in medicine no less than in other endeavors. The literature on race as a classifying tool in clinical research poses this core dilemma: On the one hand, race can be a useful stand-in for unstudied genetic and environmental factors that yield differences in disease expression and therapeutic response. On the other hand, racial distinctions have social mean ings that are often pejorative or worse, especially when these distinctions are cast as culturally or biologically fixed. Our country's troubled past in this regard and the persistence of race-related disadvantage should keep us …
Federalism In Corporate/Securities Law: Reflections On Delaware, California, And State Regulation Of Insider Trading, Donald C. Langevoort
Federalism In Corporate/Securities Law: Reflections On Delaware, California, And State Regulation Of Insider Trading, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
In this brief Essay, I offer some thoughts on both the theory and the politics underlying the federalism question. My comments will touch on some of the controversies and also look at a somewhat quieter question, the state regulation of insider trading. Over the course of the last few years, judges in California and Delaware have traveled markedly different routes on questions involving the states' role in regulating insider trading. A California court of appeal has recently expanded the reach of the state insider trading statute to cover a claim alleging misconduct in California by an executive of a Delaware …
Statutory Interpretation In The Era Of Oira, Lisa Heinzerling
Statutory Interpretation In The Era Of Oira, Lisa Heinzerling
Georgetown Law Faculty Publications and Other Works
In recent years, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) has asserted a remarkable degree of authority over administrative agencies' rulemaking processes. One of the ways in which OIRA has exercised power over agencies has been to foist upon them its own views about the requirements of the statutes under which they operate. The most notable trend in this area has been OIRA's insistence on converting technology-based environmental laws into cost-benefit laws. In OIRA's hands, for example, the Clean Water Act ("the Act") is being transformed from a technology- based regime …
Scalia's Infidelity: A Critique Of "Faint-Hearted" Originalism, Randy E. Barnett
Scalia's Infidelity: A Critique Of "Faint-Hearted" Originalism, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this essay, based on the 2006 William Howard Taft lecture, the author critically evaluates Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, the essay explains how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and …
Download It While It's Hot: Open Access And Legal Scholarship, Lawrence B. Solum
Download It While It's Hot: Open Access And Legal Scholarship, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
This article analyzes the shift of legal scholarship from the old world of law reviews to today's world of peer reviews to tomorrow's world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations …
Blogging And The Transformation Of Legal Scholarship, Lawrence B. Solum
Blogging And The Transformation Of Legal Scholarship, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
Does blogging have anything to do with legal scholarship? Could blogging transform the legal academy? This paper suggests that these are the wrong questions. Blogs have plenty to do with legal scholarship--that's obvious. But what blogs have to do with legal scholarship isn't driven by anything special about blogs qua weblogs, qua collections of web pages that share the form of a journal or log. The relationship between blogging and the future of legal scholarship is a product of other forces--the emergence of the short form, the obsolesce of exclusive rights, and the trend towards the disintermediation of legal scholarship. …
Internal Controls After Sarbanes-Oxley: Revisiting Corporate Law's "Duty Of Care As Responsibility For Systems", Donald C. Langevoort
Internal Controls After Sarbanes-Oxley: Revisiting Corporate Law's "Duty Of Care As Responsibility For Systems", Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
Revisiting section 3.4.2 of Clark's Corporate Law ('Duty of Care as Responsibility for Systems") reminds us, however, that the internal controls story actually goes back many decades, and that many of the strategic issues that are at the heart of section 404 have long been contentious. My Article will briefly update Clark's account through the late 1980s and 1990s before returning to Sarbanes-Oxley and rulemaking thereunder by the SEC and the newly created Public Company Accounting Oversight Board ("PCAOB"). My main point builds on one of Clark's but digs deeper. Internal controls requirements, whether federal or state, are incoherent unless …
The Measure Of A Justice: Justice Scalia And The Faltering Of The Property Rights Movement Within The U.S. Supreme Court, Richard J. Lazarus
The Measure Of A Justice: Justice Scalia And The Faltering Of The Property Rights Movement Within The U.S. Supreme Court, Richard J. Lazarus
Georgetown Law Faculty Publications and Other Works
The purpose of this Article is to take the measure of Justice Scalia's ability to produce significant opinions for the Court, rather than just for himself, by focusing on the Court's property rights cases during the past several decades. Much of the analysis will rely on the Blackmun Papers, because they provide a virtual treasure trove of information revealing the Court's deliberative process while Blackmun was on the Court from 1971 to 1994. Almost all of this information, including Justice Blackmun's handwritten notes on what each Justice said at the Court's private deliberations and initial voting on the cases at …
Political Power And Judicial Power: Some Observations On Their Relation, Mark V. Tushnet
Political Power And Judicial Power: Some Observations On Their Relation, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
This Essay summarizes and perhaps extends slightly some important recent work, mostly by political scientists, on the structural relation between the array of political power in a nation's nonjudicial branch or branches and the way in which judicial review is exercised in relatively stable democracies. Robert Dahl's classic article identified one such relation. According to Dahl, "[e]xcept for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance." What, though, if there is no "dominant" national political …
Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet
Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role in …
Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet
Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
As Judge Messitte's essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given …
Crystals And Mud In Nature, Richard J. Lazarus
Crystals And Mud In Nature, Richard J. Lazarus
Georgetown Law Faculty Publications and Other Works
Professor James Salzman has written a wonderful article, which promises an equally wonderful book. His article intelligently and thoughtfully examines the forces that compete, conflict, and combine in the creation of laws relating to drinking water. These include, of course, the physical characteristics of the resource itself and how the resource relates to essential biological needs of humankind. But as Professor Salzman demonstrates, the biological role is only one of several perspectives on drinking water relevant to the kind of legal rules that apply to it. The article describes drinking water as a cultural resource, a social resource, and an …
Cutter And The Preferred Position Of The Free Exercise Clause, Steven Goldberg
Cutter And The Preferred Position Of The Free Exercise Clause, Steven Goldberg
Georgetown Law Faculty Publications and Other Works
The Supreme Court’s unanimous decision in Cutter v. Wilkinson (2005) allowed Congress to give religious exercise a status superior to that given to free speech. In upholding RLUIPA, a statute protecting inmate religious freedom, the Court explicitly held that statutes can allow prisoners to “assemble for worship, but not for political rallies.” Religion, which lost in Smith (1990) the traditional “preferred position” courts have accorded First Amendment rights, can now regain that position through legislation notwithstanding the Establishment Clause. Indeed, religion has not just regained parity with free speech, it now receives greater protection in the prison setting. This striking …
Domestic Violence In Ghana: The Open Secret, Nancy Chi Cantalupo, Lisa Vollendorf Martin, Kay Pak, Sue Shin
Domestic Violence In Ghana: The Open Secret, Nancy Chi Cantalupo, Lisa Vollendorf Martin, Kay Pak, Sue Shin
Georgetown Law Faculty Publications and Other Works
This report discusses the findings of a Georgetown Law International Women’s Human Rights Clinic fact-finding team that traveled to Ghana, Africa in March 2003 to investigate domestic violence. The report reviews the contours of the domestic violence problem in Ghana and outlines the ways in which Ghanaian law and procedure was insufficiently addressing the problem at the time. Its chief findings include that the Ghanaian laws existing in 2003 inadequately punished perpetrators and protected victims of domestic violence and that court and police enforcement of the existing law was lacking, including because the government was allowing the removal of domestic …
Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne
Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne
Georgetown Law Faculty Publications and Other Works
The Supreme Court's decision in Grutter v. Bollinger represents a high-water mark for the recognition and influence of constitutional academic freedom. The Court there relied, gingerly perhaps, on constitutional academic freedom, understood as some autonomy for university decision making on matters of core academic concern, to provide a compelling interest adequate to uphold flexible racial preferences in university admissions. Now that the dust has settled from direct import of the decision for affirmative action in admissions, it is important to consider what role constitutional academic freedom, as a working constitutional doctrine, should or may play within current disputes about higher …
What Does Social Justice Require For The Public’S Health? Public Health Ethics And Policy Imperatives, Lawrence O. Gostin, Madison Powers
What Does Social Justice Require For The Public’S Health? Public Health Ethics And Policy Imperatives, Lawrence O. Gostin, Madison Powers
Georgetown Law Faculty Publications and Other Works
Justice is so central to the mission of public health that it has been described as the field's core value. Our account of justice stresses the fair disbursement of common advantages and sharing of common burdens. It captures the twin moral impulses that animate public health: to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged. This commentary explores how social justice sheds light on major ongoing controversies in the field, and it provides examples of the kinds of policies that public health agencies guided by a robust conception …
Pluralism And Public Legal Reason, Lawrence B. Solum
Pluralism And Public Legal Reason, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism--liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis of the essay is that pluralism--the diversity of religious and secular conceptions of the good--can and should work as a force for …