Law Commons^™

The Will Of The (Iraqi) People, Haider Ala Hamoudi

Articles

While there has been much literature on the Iraqi constitution of both the scholarly and popular media variety, attention to contemporary Iraqi judicial decisions, and in particular those of the Iraqi Federal Supreme Court, has been far less pronounced. In fact, my own search has not led me to a single published law review article on the subject. There is some irony to this – it is, after all, rather difficult to address the concept of constitutionalism in any state without reference to constitutional praxis, and the judiciary is, at the very least, an integral participant in that praxis. I …

The Rome I Regulation Rules On Party Autonomy For Choice Of Law: A U.S. Perspective, Ronald A. Brand

Articles

This chapter was presented at a conference in Dublin on the (then) new Rome I Regulation of the European Union in the fall of 2009. It contrasts the Rome I rules on party autonomy with those in the United States. In particular, it considers the rules in the Rome I Regulation that ostensibly protect consumers by discouraging party agreement on a pre-dispute basis to the law governing a consumer contract. These rules are compared with the absence of private international law restrictions on choice of forum and choice of law in the United States, even in consumer contracts. The result …

Moral Rights And Supernatural Fiction: Authorial Dignity And The New Moral Rights Agendas, Jacqueline D. Lipton

Articles

In recent years, several scholars have revisited the question of moral rights protections for creators of copyright works in the United States. Their scholarship has focused on defining a moral rights agenda that comports with American constitutional values, as well as being practically suited to current copyright business practices. Much of this scholarship has prioritized a right of attribution over other moral rights, such as the right of integrity. This Article evaluates some of these recent moral rights models in light of a sample of comments made by American supernatural fiction authors about their works. The Author questions whether the …

Inequitable Administration: Documenting Family For Tax Purposes, Anthony C. Infanti

Articles

Family can bring us joy, and it can bring us grief. It can also bring us tax benefits and tax detriments. Often, as a means of ensuring compliance with Internal Revenue Code provisions that turn on a family relationship, taxpayers are required to document their relationship with a family member. Most visibly, taxpayers are denied an additional personal exemption for a child or other dependent unless they furnish the individual’s name, Social Security number, and relationship to the taxpayer.

In this article, I undertake the first systematic examination of these documentation requirements. Given the privileging of the “traditional” family throughout …

Knowledge Curation, Michael J. Madison

Articles

This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types …

Beyond Invention: Patent As Knowledge Law, Michael J. Madison

Articles

The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from …

Misunderstanding Congress: Statutory Interpretation, The Supermajoritarian Difficulty, And The Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Every lawyer's theory of statutory interpretation carries with it an idea of Congress, and every idea of Congress, in turn, carries with it an idea of the separation of powers. In this article, the author critiques three dominant academic theories of statutory interpretation--textualism, purposivism, and game theory--for their assumptions about Congress and the separation of powers. She argues that each academic theory fails to account for Congress's dominant institutional features: "the electoral connection," the "supermajoritarian difficulty," and the "principle of structure-induced ambiguity." This critique yields surprising conclusions, rejecting both standard liberal and conservative views on statutory interpretation.

"Plain" meaning, it …

Using Discourse Analysis Methodology To Teach "Legal English", Craig Hoffman

Georgetown Law Faculty Publications and Other Works

In this study, I propose a curriculum focused on raising students’ linguistic awareness through rigorous discourse analysis and reflective writing in a legal context. Students analyze authentic, full-text legal documents using discourse analysis methodology. By carefully analyzing the language in legal opinions, appellate briefs, law review articles, law school exams, typical commercial contracts, and statutes, students become experts in analyzing and evaluating legal texts. Students learn to manipulate legal language to achieve various desired linguistic and legal effects. This approach has three primary advantages. First, it forces the students to carefully read authentic legal texts. Second, it gives students the …

Risk Taking And Force Protection, David Luban

Georgetown Law Faculty Publications and Other Works

This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own.

The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while …

The Post-Citizens United Fantasy-Land, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

First, a bouquet for the illuminating facts presented by Professors Wert, Gaddie, and Bullock. They make dramatically clear how minuscule independent spending by corporate PACs has been (that is, those PACs’ direct spending as distinct from support by those PACs or their corporate sponsors for spending by intermediaries like the Chamber of Commerce). Their showing is borne out by experience this year: corporate support for campaigns is almost all hidden, flowing through intermediaries, which is why getting effective disclosure is more important than ever, as the Court clearly recognizes (We probably owe much to Justice Kennedy for the fact that …

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

What Is Originalism? The Evolution Of Contemporary Originalist Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused–-with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist …

Health Insurance Reform And Intimations Of Citizenship, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This article considers the implications of the Patient Protection and Affordable Care Act (PPACA) for social meanings of civic belonging in American society and for possible new forms of individual engagement with the health care system. Once fully implemented, PPACA will have many of the governance characteristics of other social insurance systems, in that it will define membership in a collective undertaking, establish a mechanism for collective security against a shared risk, and channel, incentivize and penalize specific behaviors. The article considers the extent to which PPACA has the potential to also produce new narratives and understandings of social solidarity …

The Rise And Fall Of The Implied Warranty Of Habitability, David A. Super

Georgetown Law Faculty Publications and Other Works

Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution's frailty. Little noticed by legal scholars, the tenants' rights revolution also has failed, and for broadly similar reasons.

Withholding rent deliberately to challenge landlords' failure to repair is unduly risky for most tenants in ill-maintained dwellings: either moving to better housing is a better option or the risk of retaliation is too great. …