Law Commons^™

Apportioning Basis: Partial Sales, Bargain Sales And The Realization Principle, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

The Internal Revenue Code generally taxes appreciation in the value of property only on realization, defined to mean when property is sold or exchanged. In measuring gain on a sale or exchange, an allowance must be made for the return of capital, referred to as basis. Basis offsets the amount realized-that is, the price received for property-in order to calculate taxable gain.

Sexual Character Evidence In Civil Actions: Refining The Propensity Rule, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

When claims of sexual misconduct are made, two threads are often seen in the kinds of questions raised: Did she "invite it," and has he ever done it before? The way these questions are handled can determine the outcome of a sexual misconduct case. In 1995, Congress weighed in on whether these questions could be asked in civil cases in federal court and adopted two significant changes to the rules of evidence. One, revised Rule 412,4 extends "rape shield" protection to civil actions that claim sexual misconduct, including sexual harassment. The other, new Rule 415,5 allows plaintiffs to offer evidence …

A Law Professor’S Guide To Natural Law And Natural Rights, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Law professors nowadays mention natural law and natural rights on a regular basis, and not just in jurisprudence. Given that the founding generation universally subscribed to the idea of natural rights, this concept regularly makes a prominent appearance in discussions of constitutional law. One simply cannot avoid the concept if one is to explain Justice Samuel Chase's well-known claim in Calder v. Bull that "[t]here are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power .... An ACf of the Legislature (for I cannot call it a law) …

Commentary, At Issue – House Rules: Is A Supermajority Requirement For Tax Hikes Constitutional? – No, The Framers Had Only A Simple Majority In Mind, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The supermajority requirement undermines the constitutional principles of Article I and separation of powers. Rule XXI is not merely a rule of internal procedure; it determines when bills get presented to the Senate and the president.

Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I begin by thanking the UCLA Law Review, and particularly Darrin Mollet and Bryce Johnson, for seeing the timeliness of the topic of alternative dispute resolution and organizing this Symposium-collecting some of the best thinkers, writers, and practitioners in the field to discuss, among other things, the economics of ADR, the role of lawyers, courts, and judges in ADR, and the application of ADR to a variety of substantive legal and regulatory problems. In this Introduction, I would like to introduce the topics and the authors, and put them in the larger context of the movement that is now called …

Making Constitutional Doctrine In A Realist Age, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand …

Fame, The Founding, And The Power To Declare War, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Almost without discussion, and essentially without opposition, the Framers and Ratifiers of the United States Constitution vested in Congress the "Power ... To declare War, [and] grant Letters of Marque and Reprisal." During the past fifty years, one of the fiercest controversies in constitutional law has concerned what the Founders meant by this grant. It is a debate that has had, and that continues to have, dramatic importance. When Presidents committed troops or prepared to commit troops in Korea, Vietnam, Grenada, Panama, Iraq, Somalia, Haiti, and, most recently, Bosnia, they claimed that the Constitution did not require them to seek …

Review Of Regulatory Takings: Law, Economics And Politics, By William A. Fischel, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Regulatory Takings: law, Economics and Politics by William A. Fischel (1997).

William Fischel's Regulatory Takings confronts one of the most difficult and significant questions in constitutional law: how should courts determine which government regulations run afoul of the takings clause of the Fifth Amendment, which requires the government to provide compensation when it takes private property? Broadly read, the clause would bar government regulations with redistributive consequences, thus rendering the modern regulatory state unconstitutional. This reading, championed by Professor Richard Epstein, has achieved great prominence in academic and political debates, but the vast preponderance of judges and …

Law And Fancy, Robin West

Georgetown Law Faculty Publications and Other Works

Martha Nussbaum's graceful book Poetic Justice is an elegant brief for the importance of our capacity for imaginative "fancy" to our moral and legal lives. Imaginative fancy, Nussbaum argues, allows us to know the internal substance and quality of the lives of others. It allows us to come to appreciate, to understand, to share, and ultimately to resist others' suffering. It is, in short, the means by which we come to care about the fate and happiness of others. It is a part, but not the whole, of our capacity to transcend a narcissistic and infantile egoism. It is therefore …

Integrity And Universality: A Comment On Dworkin's Freedom's Law, Robin West

Georgetown Law Faculty Publications and Other Works

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or …

Disciplining Congress: The Taxing And Spending Powers, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Our panel will address a topic that goes to the heart of a debate over the nature of humankind: When dealing with governmentsponsored redistribution of wealth, can our elected representatives, to whom the Constitution grants federal taxing and spending authority, be trusted to exercise that authority; or must we place upon them what James Madison referred to as "auxiliary precautions," burdens higher than those imposed by the requirement that they stand for reelection, in the case of the House, every two years, or in the case of the Senate, every six years?

Lawyering For Social Justice, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

It is an honor, albeit a sad one, to be invited to write this Essay in commemoration of Tom Stoddard and as commentary on his final publication.

I first met Tom in the late 1970s, when we both joined the Board of Directors of the Lambda Legal Defense and Education Fund. Both of us were American Civil Liberties Union staff attorneys, Tom for the New York Civil Liberties Union (NYCLU) and I for the Reproducfive Freedom Project in the national office. Later, for the last half of the 1980s, Tom was the Executive Director of Lambda during the same period …

Deterrence’S Difficulty, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

We all crave simple elegance. Physicists since Einstein have been searching for a grand unified theory that will tie everything together in a simple model. Law professors have their own grand theories - law and economics's Coase Theorem and constitutional law's Originalism immediately spring to mind. Criminal law is no different, for the analogue is our faith in deterrence - the belief that increasing the penalty on an activity will mean that fewer people will perform it. This theory has much to commend it. After all, economists and shoppers have known for ages that a price increase in a good …

Some Reflections On Copyright Management Systems And Laws Designed To Protect Them, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Copyright management systems (CMS)—technologies that enable copyright owners to regulate reliably and charge automatically for access to digital works—are the wave of the very near future. The advent of digital networks, which make copying and distribution of digital content quick, easy, and undetectable, has provided the impetus for CMS research and development. CMS are premised on the concept of "trusted systems" or "secure digital envelopes" that protect copyrighted content and allow access and subsequent copying only to the extent authorized by the copyright owner. Software developers are testing prototype systems designed to detect, prevent, count, and levy precise charges for …