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Articles 1 - 30 of 113
Full-Text Articles in Law
Bridging Silos: Environmental And Reproductive Justice In The Climate Crisis, Sara A. Colangelo
Bridging Silos: Environmental And Reproductive Justice In The Climate Crisis, Sara A. Colangelo
Georgetown Law Faculty Publications and Other Works
The climate crisis is a perilous yet underexamined example of the intersection of environmental injustice and reproductive injustice. The physical manifestations of the climate crisis affect key elements of reproductive justice: women’s rights to have children, to not have children, and to parent children in healthy, sustainable communities. Reams of studies document climate disaster-driven gender violence, loss of access to healthcare and reproductive services, as well as direct and deadly health effects of climate change on maternal health, fetal development, infants, and children. Despite these profound impacts, the environmental and reproductive justice movements remain largely siloed, particularly in the legal …
Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll
Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll
Georgetown Law Faculty Publications and Other Works
Professors RonNell Andersen Jones and Sonja R. West’s Presuming Trustworthiness is a deeply depressing read. That is what makes it so good. The article is a clear-eyed, data-driven approach to assessing just how endangered the legal status of the free press is. Given the universality of the agreement that a free press is central to democracy, Andersen Jones and West’s message is vital. Presuming Trustworthiness should raise alarms.
In response, I hope this essay can serve as a bullhorn. I want to amplify what Andersen Jones and West’s research and data bear out. Not only has the Supreme Court ceased …
Updating Senator Borah: A Nuclear Kellogg-Briand Pact, David A. Koplow
Updating Senator Borah: A Nuclear Kellogg-Briand Pact, David A. Koplow
Georgetown Law Faculty Publications and Other Works
In recognizing the legacy of Senator William E. Borah, the author shares his remarks from the Borah Symposium at the University of Idaho, about the Senator's personality and character, his contribution and later characterization to international law and national security, specifically the 1928 Kellogg-Briand Pact, and finally, a proposal to a modern reincarnation to the Kellogg-Briand Pact and the newer threats of this era.
Mind The Gap(S): Mitigating Harassment In A Post #Metoo Workplace, Jamillah Bowman Williams, Elizabeth C. Tippett, Anu Ramdin
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 3,000 bills, which allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo …
Large Constellations Of Small Satellites: The Good, The Bad, The Ugly, And The Illegal, David A. Koplow
Large Constellations Of Small Satellites: The Good, The Bad, The Ugly, And The Illegal, David A. Koplow
Georgetown Law Faculty Publications and Other Works
The most exciting and far-reaching contemporary developments regarding human activities in outer space arise from the recent drastic reductions in the costs of building, launching, and operating satellites, and from the concomitant sudden emergence of large constellations of small, inexpensive, privately-owned spacecraft. These satellites--devoted to highly remunerative functions such as communications (bringing high-speed, affordable internet to underserved constituencies), remote sensing (facilitating land use planning, weather forecasting, and emergency search and rescue), and support for military operations (in Ukraine and elsewhere)--already number in the thousands and will soon reach the tens of thousands.
But in addition to generating billions of …
United States Of America, In The Forum Of Federations Handbook On Local Government In Federal Systems, Meryl Justin Chertoff
United States Of America, In The Forum Of Federations Handbook On Local Government In Federal Systems, Meryl Justin Chertoff
SALPAL Papers & Reports
Municipalities in the United States (US), particularly those in its largest metropolitan areas, drive economic growth and innovation and are home to the majority of the nation’s population, but their political status under the federal constitutional system of divided government is relatively weak. That does not mean US cities lack political power; it means that the federalist structure weakens, rather than enhances, city power. The US Constitution does not even mention cities, and the US federal structure has not evolved to reflect ‘city power’. There is a mismatch between the rise of cities on the global stage and their role …
Beyond The Watchdog: Using Law To Build Trust In The Press, Erin C. Carroll
Beyond The Watchdog: Using Law To Build Trust In The Press, Erin C. Carroll
Georgetown Law Faculty Publications and Other Works
Declining trust in the American press has been longstanding and corrosive—both to our information environment and to democracy. It is tempting to think that if journalists could just repeatedly and brilliantly play their key role—that of watchdog—it might be redemptive. But doubling down on the watchdog function holds risks in our polarized climate. Research shows that some conservatives recoil from watchdog journalism, finding it too cynical and politicized.
This essay argues that a different journalistic function—one that has received far less attention and adulation from judges and legal scholars—should be encouraged and amplified. This is the press’s role as a …
Judges For Sale: The Effect Of Campaign Contributions On State Criminal Courts, Arturo Romero Yáñez, Neel U. Sukhatme
Judges For Sale: The Effect Of Campaign Contributions On State Criminal Courts, Arturo Romero Yáñez, Neel U. Sukhatme
Georgetown Law Faculty Publications and Other Works
Do campaign contributions impact democratic processes? Using donation data from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants.
We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as those based on professional, ideological, political, or personal ties. …
The Constitutional (And Political) Safeguards Against Impeachment, Victoria Frances Nourse
The Constitutional (And Political) Safeguards Against Impeachment, Victoria Frances Nourse
Georgetown Law Faculty Publications and Other Works
Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the …
Risk Tradeoffs And Equitable Decision-Making In The Covid-19 Pandemic, Lawrence O. Gostin, Sarah A. Wetter
Risk Tradeoffs And Equitable Decision-Making In The Covid-19 Pandemic, Lawrence O. Gostin, Sarah A. Wetter
Georgetown Law Faculty Publications and Other Works
Since the start of the Covid-19 pandemic, societies have faced agonizing decisions about whether to close schools, shutter businesses, delay nonemergency health care, restrict travel, and authorize the use of emergency Covid-19 countermeasures under limited scientific understanding. Measures to control the spread of COVID-19 have disrupted our health, educational, and economic systems, tarnished our mental health, and took away our cherished time with family and friends. Conflicting advice from health agencies on the utility of public health measures left us wondering, was it all worth it? We still do not have all the answers to guide us through difficult risk-risk …
Tax Now Or Tax Never: Political Optionality And The Case For Current-Assessment Tax Reform, David Gamage, John R. Brooks
Tax Now Or Tax Never: Political Optionality And The Case For Current-Assessment Tax Reform, David Gamage, John R. Brooks
Georgetown Law Faculty Publications and Other Works
The U.S. income tax is broken. Due to the realization doctrine and taxpayers’ consequent ability to defer taxation of gains, taxpayers can easily minimize or avoid the taxation of investment income, a failure that is amplified many times over when considering the ultra-wealthy. As a result, this small group of taxpayers commands an enormous share of national wealth yet pays paltry taxes relative to the economic income their wealth produces—a predicament that this Article condemns as being economically, politically, and socially harmful.
The realization doctrine is widely justified as an accommodation made for administrative convenience. Although there have been numerous …
Esg & Anti-Black Racism, Alicia E. Plerhoples
Esg & Anti-Black Racism, Alicia E. Plerhoples
Georgetown Law Faculty Publications and Other Works
This essay discusses contemporary federal, financial intermediary, and company efforts to navigate racial inequality, placing those efforts in the context of ESG—environmental, social, and governance—initiatives. While ESG tools and metrics have tended to focus on a firm’s external and internal impacts on the environment, human rights, and labor standards, in recent years, firms have targeted ESG efforts at racial equity primarily through internal diversity, equity, and inclusion (DEI) initiatives and customer-facing corporate philanthropy. This essay proposes an ESG racial equity goal, discusses how federal regulations of corporate DEI programs and policies fail to meet this goal, and highlights how racial …
Textual Gerrymandering: The Eclipse Of Republican Government In An Era Of Statutory Populism, William N. Eskridge, Victoria Frances Nourse
Textual Gerrymandering: The Eclipse Of Republican Government In An Era Of Statutory Populism, William N. Eskridge, Victoria Frances Nourse
Georgetown Law Faculty Publications and Other Works
We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts …
Mandatory Sars-Cov-2 Vaccinations In K-12 Schools, Colleges/Universities, And Businesses, Lawrence O. Gostin, Jana Shaw, Daniel A. Salmon
Mandatory Sars-Cov-2 Vaccinations In K-12 Schools, Colleges/Universities, And Businesses, Lawrence O. Gostin, Jana Shaw, Daniel A. Salmon
Georgetown Law Faculty Publications and Other Works
The Centers for Disease Control and Prevention (CDC) recently issued guidance that fully vaccinated individuals can safely remove masks and end social distancing in most indoor settings. Educational facilities and businesses are faced with whether and how to differentiate between vaccinated and unvaccinated individuals, including requiring proof of vaccination. Mandatory vaccination has historically served as a tool to reach and sustain high immunization coverage and to prevent transmission in K-12 schools, colleges/universities, and health care facilities. Vaccine mandates could extend to workers and customers in businesses to ensure safer environments. This Viewpoint examines the epidemiologic, public health, and legal considerations …
Constitutional Skepticism And Local Facts, Louis Michael Seidman
Constitutional Skepticism And Local Facts, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
Are written constitutions evil? In his new book, Constitutional Idolatry and Democracy, Brian Christoper Jones argues that they are. He claims that written constitutions fail to unite societies, degrade democratic engagement, and obstruct necessary constitutional maintenance. This review of his book argues that he is mostly right about the effects of the American Constitution, but that the effects of other constitutions will vary depending upon local facts.
The Case For Chevron Deference To Immigration Adjudications, Patrick J. Glen
The Case For Chevron Deference To Immigration Adjudications, Patrick J. Glen
Georgetown Law Faculty Publications and Other Works
Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.”
The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and …
From Parchment To Dust: The Case For Constitutional Skepticism (Introduction), Louis Michael Seidman
From Parchment To Dust: The Case For Constitutional Skepticism (Introduction), Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
This is the introduction to a new book entitled "From Parchment to Dust: The Case for Constitutional Skepticism." The introduction sets out a preliminary case for constitutional skepticism and outlines the arguments contained in the rest of the book.
Hannah Arendt Meets Qanon: Conspiracy, Ideology, And The Collapse Of Common Sense, David Luban
Hannah Arendt Meets Qanon: Conspiracy, Ideology, And The Collapse Of Common Sense, David Luban
Georgetown Law Faculty Publications and Other Works
A June 2020 survey found one in four Americans agreeing that “powerful people intentionally planned the coronavirus outbreak.” In fall 2020, seven percent said they believe the elaborate and grotesque mythology of QAnon; another eleven percent were unsure whether they believe it. November and December 2020 found tens of millions of Americans believing in election-theft plots that would require superhuman levels of coordination and secrecy among dozens, perhaps hundreds, of otherwise-unconnected and unidentified miscreants.
Conspiracy theories are nothing new, and they raise a question that preoccupied Hannah Arendt in The Origins of Totalitarianism: whatever happened to common sense? Arendt …
Mandating Covid-19 Vaccines, Lawrence O. Gostin, Daniel A. Salmon, Heidi J. Larson
Mandating Covid-19 Vaccines, Lawrence O. Gostin, Daniel A. Salmon, Heidi J. Larson
Georgetown Law Faculty Publications and Other Works
Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) vaccines hold promise to control the pandemic, and help restore normal social and economic life. The Food and Drug Administration (FDA) has granted emergency use authorization (EUA) for 2 mRNA vaccines and will likely issue full biologics licenses in the coming months. Anticipating vaccine scarcity, the Advisory Committee on Immunization Practice (ACIP) published guidance on vaccine priorities.
Data show 95% efficacy for vaccines granted an EUA, but even highly effective vaccines cannot curb the pandemic without high population coverage and maintenance of other mitigation strategies. Recent data from 1,676 adults surveyed November 30-December …
Reforming And Strengthening The Centers For Disease Control And Prevention: Five Key Reforms To Renew The Agency’S Stature And Effectiveness, Lawrence O. Gostin, Sandro Galea
Reforming And Strengthening The Centers For Disease Control And Prevention: Five Key Reforms To Renew The Agency’S Stature And Effectiveness, Lawrence O. Gostin, Sandro Galea
Georgetown Law Faculty Publications and Other Works
The US Centers for Disease Control and Prevention (CDC) is the world’s leading public health agency, so admired that whole regions and countries have borrowed its name—in Africa, Europe, even China. In past epidemics, CDC’s expertise was transformative, such as in AIDS, Ebola, Zika, and Influenza H1N1. If there ever were a moment for the CDC to show leadership domestically and globally, it was the COVID-19 pandemic. Yet, the CDC’s stature was diminished—not enhanced—in an administration that not only eschewed science and politically pressured the CDC, but also gave notice of withdrawal from the World Health Organization (WHO), where CDC …
The International Health Regulations (2005), The Threat Of Populism And The Covid-19 Pandemic, Kumanan Wilson, Sam F. Halabi, Lawrence O. Gostin
The International Health Regulations (2005), The Threat Of Populism And The Covid-19 Pandemic, Kumanan Wilson, Sam F. Halabi, Lawrence O. Gostin
Georgetown Law Faculty Publications and Other Works
The global response to the COVID-19 pandemic has laid bare weaknesses and major challenges in the international approach to managing public health emergencies. Populist sentiment is spreading globally as democratic nations are increasing their support for or electing governments that are perceived to represent “traditional” native interests. Measures need to be taken to proactively address populist sentiment when reviewing the IHR (2005) effectiveness in the COVID-19 pandemic. We discuss how populism can impact the IHR (2005) and conversely how the IHR (2005) may be able to address populist concerns if the global community commits to helping states address public health …
The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood
The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood
Georgetown Law Faculty Publications and Other Works
As should be clear, this is less a book review and more an in-depth exploration of a key point Professor Barkow makes in Prisoners of Politics as applied to the federal criminal justice system. Sure, we need expertise in order to make data-driven criminal justice policy decisions--as Barkow puts it, “[t]he key is to create and foster an institutional framework that prioritizes data” and “expertise” so as to “create incentives for key decisionmakers to be accountable for real results” (pp. 14-15). But in creating reforms, the kindof expertise is also important. Many federal policymakers currently view the DOJ and …
States’ Evolving Role In The Supplemental Nutritional Assistance Program, David A. Super
States’ Evolving Role In The Supplemental Nutritional Assistance Program, David A. Super
Georgetown Law Faculty Publications and Other Works
States have always been crucial to the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps). Even though the federal government has paid virtually all the program’s benefit costs, state administration has always been indispensable for several reasons. State and local governments pay their staff considerably less than the federal government, making state administration less expensive. States already administer other important antipoverty programs, notably family cash assistance and Medicaid, allowing them to coordinate the programs and minimize repetitive activities. And states have somewhat lower, and less polarizing, political footprints than does the federal government, moderating criticism of the program. In addition, …
Robert F. Kennedy And The Attorney General's Referral Authority: A Blueprint For The Biden Administration, Patrick J. Glen
Robert F. Kennedy And The Attorney General's Referral Authority: A Blueprint For The Biden Administration, Patrick J. Glen
Georgetown Law Faculty Publications and Other Works
For nearly four years, the Trump Administration’s use of the Attorney General’s referral authority has been criticized by the legal left on both substantive and procedural grounds. With the advent of the Biden Administration, however, use of the authority for liberal ends deserves serious consideration. To conclude otherwise would be throwing the baby out with the bath water. This article argues that the referral authority can be used for liberal constructions of the immigration laws, and that the perfect model for the incoming administration is former Attorney General Robert Kennedy and his use of the authority for just such ends. …
Wto’Ing A Resolution To The China Subsidy Problem, Chad P. Brown, Jennifer A. Hillman
Wto’Ing A Resolution To The China Subsidy Problem, Chad P. Brown, Jennifer A. Hillman
Georgetown Law Faculty Publications and Other Works
The United States, European Union, and Japan have begun a trilateral process to confront the Chinese economic model, including its use of industrial subsidies and deployment of state-owned enterprises. This paper seeks to identify the main areas of tension and to assess the legal-economic challenges to constructing new rules to address the underlying conflict. It begins by providing a brief history of subsidy disciplines in the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) predating any concerns introduced by China. It then describes contemporary economic problems with China's approach to subsidies, their impact, and the …
The “Conscience” Rule: How Will It Affect Patients’ Access To Health Services?, Lawrence O. Gostin
The “Conscience” Rule: How Will It Affect Patients’ Access To Health Services?, Lawrence O. Gostin
Georgetown Law Faculty Publications and Other Works
On May 2, 2019, the US Department of Health and Human Services (HHS) and Office of Civil Rights (OCR) released a final rule that heightens the rights of hospitals and health workers to refuse to participate in patients’ medical care based on religious or moral grounds. The rule covers OCR’s authority to investigate and enforce violations of 25 federal “conscience protection” laws. Tied to the US Constitution’s spending power, the rule applies to state and local governments, as well as public and private health care professionals and entities if they receive federal funds such as Medicare or Medicaid. The rule …
The Shallow State: The Federal Communications Commission And The New Deal, Daniel R. Ernst
The Shallow State: The Federal Communications Commission And The New Deal, Daniel R. Ernst
Georgetown Law Faculty Publications and Other Works
American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state. Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order. Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State. This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal. For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, …
Mr. Try-It Goes To Washington: Law And Policy At The Agricultural Adjustment Administration, Daniel R. Ernst
Mr. Try-It Goes To Washington: Law And Policy At The Agricultural Adjustment Administration, Daniel R. Ernst
Georgetown Law Faculty Publications and Other Works
In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration but better for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each forced to interpret same, ambiguous statutory language. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and …
Progressive And Populist Strands In American Constitutionalism, Louis Michael Seidman
Progressive And Populist Strands In American Constitutionalism, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”
There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of …
The Corporate Purpose Of Social License, Hillary A. Sale
The Corporate Purpose Of Social License, Hillary A. Sale
Georgetown Law Faculty Publications and Other Works
This Article deploys the sociological theory of social license, or the acceptance of a business or organization by the relevant communities and stakeholders, in the context of the board of directors and corporate governance. Corporations are generally treated as “private” actors and thus are regulated by “private” corporate law. This construct allows for considerable latitude. Corporate actors are not, however, solely “private.” They are the beneficiaries of economic and political power, and the decisions they make have impacts that extend well beyond the boundaries of the entities they represent.
Using Wells Fargo and Uber as case studies, this Article explores …