Law Commons^™

Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank

All Faculty Scholarship

In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or …

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

All Faculty Scholarship

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …

Shifting Seas: The Law's Response To Changing Ocean Conditions, Casey Schickling

Sea Grant Law Fellow Publications

No abstract provided.

Reconstruction And Resistance, Kermit Roosevelt Iii

All Faculty Scholarship

This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and speculate that Balkin …

Originalism And The Other Desegregation Decision, Ryan C. Williams

All Faculty Scholarship

Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates" the Fourteenth …

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …

Facebook, The Jobs Act, And Abolishing Ipos, Adam C. Pritchard

Law & Economics Working Papers

The market for initial public offerings (IPOs) — the first sale of private firms’ stock to the public — is notorious for its swings from peaks to valleys. This paper argues that these swings reflect serious flaws in the IPO scheme, and that U.S. capital markets should move toward a more stable alternative. Specifically, this paper argues for a two-tier market system in which new stock issuers initially participate in a less-regulated private capital market of accredited investors and then, if they choose, they can move to a more regulated, broader public market. Likewise, firms currently participating in the public …

Book Review: The Public International Law Regime Governing International Investment, By Jose E. Alvarez, The Hague: Hague Academy Of International Law, 2011, Pp. 502, Susan Franck

Book Reviews

Jose Alverez's recent book, The Public International Law Regime Governing International Investment, places international investment law firmly within the rubric of public international law. Historically, international investment law might have been classified as pure private international law given the private commercial actors and investment activities involved. Alvarez posits that a dichotomous public versus private law paradigm does not work in the context of international investment and makes the implicit explicit by considering investment law’s unique, arguably sui generis, hybrid essence that crosses the public and private international law divides. This book review explores Alvarez's primary thesis and his extended exposition …

Enhancing Public Access To Online Rulemaking Information, Cary Coglianese

All Faculty Scholarship

One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ efforts to make rulemaking information available …

Hauerwasian Christian Legal Theory, David A. Skeel Jr.

All Faculty Scholarship

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

"Perpetual Trusts: The Walking Dead" And "Congress Should Effectively Curb Gst Exemption For Perpetual Trusts.", Calvin H. Johnson, Lawrence W. Waggoner

Law & Economics Working Papers

In separate but complementary letters to the editor of Tax Notes, Calvin Johnson (University of Texas School of Law) and Lawrence Waggoner (University of Michigan Law School) respond to an article by Dennis Belcher and seven other practicing attorneys that defend the GST exemption for perpetual trusts. In Federal Tax Rules Should Not Be Used to Limit Trust Duration, 126 Tax Notes 832 (Aug 13, 2012), the attorneys argue that the duration of a trust is a state law issue. Their article is actually a response to a Shelf Project article: Lawrence W. Waggoner, Effectively Curbing the GST Exemption for …

Prison, Foster Care, And The Systemic Punishment Of Black Mothers, Dorothy E. Roberts

All Faculty Scholarship

This article is part of a UCLA Law Review symposium, “Overpoliced and Underprotected: Women, Race, and Criminalization.” It analyzes how the U.S. prison and foster care systems work together to punish black mothers in a way that helps to preserve race, gender, and class inequalities in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that each …

Political Authority And Political Obligation, Stephen R. Perry

All Faculty Scholarship

Legitimate political authority is often said to involve a “right to rule,” which is most plausibly understood as a Hohfeldian moral power on the part of the state to impose obligations on its subjects (or otherwise to change their normative situation). Many writers have taken the state’s moral power (if and when it exists) to be a correlate, in some sense, of an obligation on the part of the state’s subjects to obey its directives. Thus legitimate political authority is said to entail a general obligation to obey the law, and a general obligation to obey the law is said …

Law's Public/Private Structure, Christian Turner

Scholarly Works

Often derided for its incoherence or uselessness, the public/private distinction is rarely studied explicitly outside the state action doctrine in Constitutional Law. To ignore this distinction, however, is to miss the most fundamental sorting criterion in our law. Distinguishing whether public or private entities control (a) law creation and definition and (b) prosecution leads to a simple yet powerful taxonomy of legal systems. The taxonomy characterizes legal systems in terms of control over decisionmaking by our most basic institutional forms: the public and private. Thus, the proper categorization of laws within the system, for example whether a policy should be …

Life Without Parole Under Modern Theories Of Punishment, Paul H. Robinson

All Faculty Scholarship

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done …

Federalism: Theory, Policy, Law, Daniel Halberstam

Book Chapters

Even France now values local government. Over the past 30 years, top-down appointment of regional prefects and local administrators has given way to regionally elected councils and a revision of Article 1 of the French Constitution, which proclaims that today the state’s ‘organization is decentralized’. The British Parliament, too, has embraced local rule by devolving powers to Scotland, Wales, and Northern Ireland. And in China, decentralization has reached a point where some scholars speak of ‘de facto federalism’. A systematic study of the distribution of authority in 42 democracies found that over the past 50 years, regional authority grew in …

Constitutional Heterarchy: The Centrality Of Conflict In The European Union And The United States, Daniel Halberstam

Book Chapters

In the debates about whether to take constitutionalism beyond the state, the European Union invariably looms large. One element, in particular, that invites scholars to grapple with the analogy between the European Union and global governance is the idea of legal pluralism. Just as the European legal order is based on competing claims of ultimate legal authority among the European Union and its member states, so, too, the global legal order, to the extent that we can speak of one, lacks a singular, uncontested hierarchy among its various parts. To be sure, some have argued that the UN Charter provides …

What's Best For Women: Examining The Impact Of Legal Approaches To Prostitution In Cross-National Perspective And Rhode Island, Malinda Bridges

Honors Projects

This research analyzes legal approaches to prostitution on a cross-national level in order to determine if legal methods that regulate prostitution have an effect on prostitution. In order to examine these concepts, legel approaches were first identifed in the United States, Germany, the Netherlands, and Sweden. Following this analysis, the effects of these legal approaches are reported. Instead of working from a strictly sociological standpoint, this project focused greatly on the legal aspects that affect prostitution.

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue …

States Of Bankruptcy, David A. Skeel Jr.

All Faculty Scholarship

In the past several years, many states’ financial condition has been so precarious that some observers have predicted that one or more might default. As the crisis persisted, a very unlikely word crept into these conversations: bankruptcy. Should Congress provide a bankruptcy option for states, or would bankruptcy be a mistake? The goal of this Article is to carefully vet this question, using all of the theoretical, empirical and historical tools currently available. The discussion is structured as a “case” for bankruptcy, rather than an “on the one hand, on the other hand” assessment. But it seeks to be scrupulously …

Losing My Religion: The Place Of Social Justice In Clinical Legal Education, Praveen Kosuri

All Faculty Scholarship

Many law school clinics presume a “social justice” mission—that is, representation of the indigent and under-represented about poverty law issues—as the only legitimate goal for clinic clients and matters. This article contends that social justice should not be presumed, but rather should be considered an option—among many—to include in a clinic’s pedagogy. If increased experiential learning opportunities for students are a real objective, and clinics are the pinnacle of those opportunities, then broadening the portfolio of clinical offerings to include those that are not focused on social justice should be a valid proposition. The modern clinical legal education movement that …

Collegiality And Individual Dignity, Tobias Barrington Wolff

All Faculty Scholarship

This Essay identifies and describes the tension between the norms of collegiality and basic principles of individual dignity that LGBT scholars and lawyers encounter when confronted with the dehumanizing arguments that are regularly advanced by opponents of equal treatment under law for lesbian, gay, bisexual and transgender people. It is a transcript of remarks delivered at a March 2012 symposium on the Defense of Marriage Act at Fordham Law School, with minimal edits for publication.

The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicholas Treich

All Faculty Scholarship

We examine how different welfarist frameworks evaluate the social value of mortality risk-reduction. These frameworks include classical, distributively unweighted cost-benefit analysis—i.e., the “value per statistical life” (VSL) approach—and three benchmark social welfare functions (SWF): a utilitarian SWF, an ex ante prioritarian SWF, and an ex post prioritarian SWF. We examine the conditions on individual utility and on the SWF under which these frameworks display the following five properties: i) wealth sensitivity, ii) sensitivity to baseline risk, iii) equal value of risk reduction, iv) preference for risk equity, and v) catastrophe aversion. We show that the particular manner in which VSL …

The Strategic Use Of Public And Private Litigation In Antitrust As Business Strategy, D. Daniel Sokol

UF Law Faculty Publications

This Article claims that there may be a subset of cases in which private rights of action may work with public rights as an effective strategy for a firm to raise costs against rival dominant firms. A competitor firm may bring its own case (which is costly) and/or have government bring a case on its behalf (which is less costly). Alternatively, if the competitor firm has sufficient financial resources, it can pursue an approach that employs both strategies simultaneously. This situation of public and private misuse of antitrust may not happen often. As the Article will explore, it is not …

Parallel Contract, Aditi Bagchi

All Faculty Scholarship

This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic …

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Law & Economics Working Papers

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified …

Who’S Afraid Of The Apa?, David J. Shakow

All Faculty Scholarship

The Supreme Court’s decision in Mayo Foundation for Medical Education and Research v. United States means that tax practitioners must be more sensitive to administrative law and judicial deference to administrative rules. This includes gaining some familiarity with the Administrative Procedure Act (APA) and the major cases that deal with judicial deference to administrative action, starting with Chevron USA Inc. v. Natural Resources Defense Council Inc. While the Supreme Court spends a lot more time considering issues of administrative law rather than tax law, the many decisions don’t result in a clear set of rules as to how courts are …

Responses To The 11/4/11 Ostp Data Rfi, David Lowe

Published Works

On November 3, 2011, OSTP released a Request for Information (RFI) soliciting public input on long-term preservation of, and public access to, the results of federally funded research, including digital data ,as required in the America COMPETES Reauthorization Act of 2010. Published here are the responses from David Lowe, Preservation Librarian and Digital Programs Team Leader at the University of Connecticut Libraries.

Cute Prickly Critter With Presbyopia, Don Herzog

Reviews

Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …