Law Commons^™

On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit, Brief Of Law Professors Paul F. Rothstein, Et. Al., Office Of The President V. Office Of Independent Counsel, Paul F. Rothstein, Ronald J. Allen, Margaret A. Berger, William J. Bridge, Paul C. Giannelli, Stephen Gillers, Laird C. Kirkpatrick, David P. Leonard, Miguel A. Mendez, Roger C. Park, Myrna S. Raeder, John W. Reed, Mark Reutlinger, Leo M. Romero, Stephen A. Saltzburg, Peter Tillers

U.S. Supreme Court Briefs

This Court should grant review not only because this is a case of national importance and prominence, but also because the decision below is a conspicuous departure from settled principles of evidence law. The panel majority concluded that communications between government lawyers and government officials are not protected by the attorney-client privilege, at least when those communications are sought by a federal grand jury. That conclusion conflicts with the predominant common-law understanding that the attorney-client privilege applies to government entities and that where the privilege applies, it is absolute (i.e., it protects against disclosure in all types of legal and …

The Role Of The World Bank In Controlling Corruption, Susan Rose-Ackerman

Philip A. Hart Memorial Lecture

In 1997, Professor of Law and Political Science, Susan Rose-Ackerman of Yale University, delivered the Georgetown Law Center’s seventeenth Annual Philip A. Hart Memorial Lecture: "The World Bank’s Role in Controlling Corruption."

Susan Rose-Ackerman is Henry R. Luce Professor of Law and Political Science, Yale University, and Co-director of the Law School’s Center for Law, Economics, and Public Policy. She holds a Ph.D. in economics from Yale University and has held fellowships from the Guggenheim Foundation and the Fullbright Commission. She was a visiting Research Fellow at the World Bank in 1995-96 where she did research on corruption and economic …

Counting Votes And Discounting Holdings In The Supreme Court's Takings Cases, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

This Essay focuses on a dimension of the regulatory takings issue that has received relatively little attention in what is otherwise a vast amount of literature on the topic: Why the Court is so persistently splintered and its precedent so seemingly schizophrenic. Most academic discussion has focused on the sheer difficulty of reconciling the public's firmly held conception of sacrosanct private property rights with the public's increasing demand for restrictions on the exercise of those same rights when they affect others adversely. This Essay's thesis is that reasons for this phenomenon exist beyond those that have dominated the ongoing academic …

Can We Indict A Sitting President?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

This symposium addresses the difficult question of whether a President can be criminally prosecuted while still in office or whether indictment and prosecution must await his leaving. The question is difficult because the text of the Constitution gives us some hints but no dispositive answers. At first reading, Section 3 of Article I seems to suggest that impeachment must precede any criminal prosecution: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless …

The Bad Man And The Good Lawyer: A Centennial Essay On Holmes's The Path Of The Law, David Luban

Georgetown Law Faculty Publications and Other Works

Although Justice Holmes did not much enjoy listening to speeches (he once wondered "what makes the world throng to hear loose-fibred and coarse-grained men drool"), he had a remarkable gift for writing them. Holmes's 1920 Collected Legal Papers includes a dozen speeches and addresses, all delivered to student audiences or lawyers' associations, and there are unexpected pleasures to be found in every one. He had published all but four in a previous book of speeches, where he described them as "chance utterances of faith and doubt.., for a few friends who will care to keep them."' Among the four he …

Congressional Self-Discipline: The Constitutionality Of Supermajority Rules, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Congress needs to be more disciplined. It has at times become sloppy and even cavalier. When, for example, Congress enacted the federal Gun-Free School Zone Act of 1990, it was asking for trouble. Neither the legislation nor the legislative history said anything about any effect on interstate commerce. It was therefore not surprising to see the Supreme Court strike the law down in United States v. Lopez.

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 …

The Constitutional Right To Die: Ethical Considerations, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this commentary, the author first looks at some ethical reasoning supporting physician-assisted dying. Second, he examines some of the lines that have been drawn between withdrawing and withholding life-sustaining treatment on the one hand, and physician-assisted dying on the other. Finally, he relates both of these matters to constitutional reasoning, beginning with Cruzan and ending with the cases before the Supreme Court at the time of the article's publication.

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 …

Passion's Progress: Modern Law Reform And The Provocation Defense, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Based on a systematic study of fifteen years of passion murder cases, this article concludes that reform challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bedside confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases the author has studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. …

The Armstrong Principle, The Narratives Of Takings, And Compensation Statutes, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The Takings Clause of the Fifth Amendment is famous for inspiring disagreement. More than one hundred years have passed since the Supreme Court departed from the original understanding of the clause and interpreted regulations as potentially falling within its ambit. Although the passage of time has established the principle that regulations can run afoul of the Takings Clause, the Court has been unable to offer a coherent vision of when compensation is required. Academic commentators also have failed to reach agreement on the issue, offering an enormous range of solutions to the takings question. The newest field of controversy involves …

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 …

When Dispute Resolution Begets Disputes Of Its Own: Conflicts Among Dispute Professionals, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

As the processes comprising, alternative, or as we now say, "appropriate" dispute resolution mature and enter new phases of use, new issues have emerged to demonstrate that professionals engaged in providing dispute resolution services have disputes and conflicts among themselves. This Article reviews some of those conflicts and issues and suggests some resolutions for these disputes between dispute resolvers.

The Silences Of The Restatement Of The Law Governing Lawyers: Lawyering As Only Adversary Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The attempt to "restate" the law governing lawyers is a noble effort. The drafts, to date, have presented a heroic gathering, in one place, of case law and competing formulations of a variety of the professional disciplinary codes. The drafters have attempted to settle some difficult and often contentious issues regarding lawyer responsibilities to clients, to courts, to third parties, and to themselves. At the same time, this Restatement suffers from the temporal flaws of all its sisters and brothers - in its efforts to "restate" the law it looks backward, not forward, and thus will provide little guidance, at …

Ethics In Adr Representation: A Roadmap Of Critical Issues, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Much ink has been spilled in recent years on the ethics and standards that should be applied to third party neutrals acting as mediators, arbitrators or evaluators in a variety of "alternative" (or as we now say, "appropriate") dispute resolution fora. Much less ink has been spilled on what could be an even more difficult issue: Should different ethical standards be applied to lawyers who serve as "representatives" inside ADR processes than the usual rules applied to lawyers in their roles as "advocates" or "counselors" in the more traditional adversary system?

Necessary And Proper, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this article, the author maintains that, if the courts are to hold Congress to the exercise of its enumerated powers, then they must come to grips with the congressional power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." While the Necessary and Proper Clause has long been used to greatly expand congressional power, he argues that, to the contrary, it provides a two-part standard against which all national …

Intimate Violence And The Problem Of Consent, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

The juxtaposition of intimacy with violence is striking. Intimacy implies a closeness and a vulnerability that is treasured and inviolate. Intimacy should foreclose the possibility of violence. Intimate violence should be an oxymoron. Yet, intimacy sometimes creates its own special kind of violence, one that can erupt into rape or assault. On a less physical level, intimacy may cause violence to a woman's personal integrity and economic independence.

Intimate violence manifests itself with a certain subtlety that forces women to walk a careful tightrope in order to avoid threatened harm. This essay is about that tightrope: the double binds women …

The Epidemics Of Injecting Drug Use And Blood-Borne Disease: A Public Health Perspective, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this article, the author first examines the mechanism by which blood-borne disease is transmitted through sharing of injection equipment. Thereafter, he presents a public health strategy for reducing multi-person use of contaminated injection equipment. This strategy includes: repealing or modifying current laws and regulations making possession and distribution of sterile injection equipment a criminal offense; implementing syringe exchange programs to expand access to new syringes for users of injection drugs; and counseling, education, and treatment targeted to injecting drug users (IDUs), including those in the prison and health care system. The objective of a public health approach is not …

Dedicatory Essay: Honoring Ian Mccoll Kennedy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Ian Kennedy is perhaps the best known and most important figure in health law and ethics in the United Kingdom, and probably one of the most significant in Europe and North America. How did his life and career evolve to the point where he would wield such influence? This essay examines the leadership, erudition, and passion Ian Kennedy has brought to the field of health law and ethics. It is perhaps not an overstatement to suggest that Professor Kennedy virtually invented the field in the United Kingdom. He did so through his scholarship, public advocacy, and influence in shaping institutions, …

Free Speech At Work: Verbal Harassment As Discriminatory (Mis)Treatment, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

In his reply to my article on workplace harassment law and freedom of speech, Professor Volokh does not respond to my most important critiques of his earlier work. For example, he fails to grapple with the true complexity of the problem by focusing exclusively on one side of this conflict of rights-the burden that the law imposes on workplace expression. Equal attention must be paid to the other side: the harm inflicted by discriminatory speech on employees of a single gender. As I describe in detail in my original piece, these harms may include: an adverse effect on the quantity …

Harm And Money: Against The Insurance Theory Of Tort Compensation, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Since the 1980s, tort damages for pain and suffering have excited hue and cry. Twenty-three states currently place statutory limitations on tort damages for pain and suffering: seven states cap damages in general tort cases; an additional sixteen states limit awards solely in medical malpractice cases. Several states also have provisions limiting damages in other, very specific types of tort cases. While some statutes have been invalidated on state constitutional grounds, others have survived judicial scrutiny. At the federal level, both the House of Representatives and the Senate have passed tort-reform bills. Although no compromise legislation has been enacted, this …

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 …

Ethics In Alternative Dispute Resolution: New Issues, No Answers From The Adversary Conception Of Lawyers’ Responsibilities, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The romantic days of ADR appear to be over. To the extent that proponents of ADR, like myself, were attracted to it because of its promise of flexibility, adaptability, and creativity, we now see the need for ethics, standards of practice and rules as potentially limiting and containing the promise of alternatives to rigid adversarial modes of dispute resolution. It is almost as if we thought that anyone who would engage in ADR must of necessity be a moral, good, creative, and, of course, ethical person. That we are here today is deeply ironic and yet, also necessary, as "appropriate" …

What Trina Taught Me: Reflections On Mediation, Inequality, Teaching And Life, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Trina Grillo and I trained together as mediators, met together as law teachers, commiserated together as women and civil rights activists, and laughed and cried together as friends. I shall miss her wise counsel, her sensible judgment, her measured indignation, her gentleness and her razor sharp perceptions about the world, across, through and with her gender, race, class, and human identities. I shall miss her words, her presence, her body, her corporeal essence, but she will always be with me and my students in her spirit and through her contributions to our work. In this Essay I want to reflect …

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 …

Legal Fictions: Copyright, Fan Fiction, And A New Common Law, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

A girl owns a number of Barbie dolls. She makes outfits for them and constructs elaborate scenarios in which they play starring roles. She enacts her dramas in her front yard, where passers-by can easily see. Does she violate the law? What if the girl writes down her stories starring Barbie? What happens when she lets her friends read them? What if she e-mails those stories to a Barbie mailing list? What if she posts those stories and a picture of Barbie in her new outfit on her Web page?

Copyright law has long been a concern more for corporations …

Proposition 209, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

I have a proposition for you. It's called Proposition 209. All you have to do is stop discriminating in favor of women and racial minorities, and your perpetual problems of race and gender discrimination will finally disappear. If this Proposition sounds too good to be true ... well, you know how the saying goes. In law, as in life, the seductiveness of a proposition owes as much to its disregard of established norms as to its underlying content. Eliminate the affront to social convention, and a proposition promises about as much excitement as a routine liaison with one's spouse. But …

Coping With Partiality: Justice, The Rule Of Law, And The Role Of Lawyers, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Lawyers help ameliorate a particular instance of what the author calls the problem of interest--the partiality problem. For he believes that it falls to law professors to imbue in their students an understanding of the important role that lawyers play in society, if for no other reason than they will need some emotional armament from the slings and arrows of incessant lawyer jokes and worse. In explaining how the existence of lawyers helps address the problem of partiality, the author also explains how adherence to property rights, freedom of contract, and the rule of law--concepts long disparaged by law professors--help …

Was Slavery Unconstitutional Before The Thirteenth Amendment? Lysander Spooner’S Theory Of Interpretation, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, "a covenant with death and an agreement with hell." Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: "If slavery were not wrong, nothing is wrong." Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery …

Comparatively Speaking: The Honor Of The East And The Passion Of The West, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

In this Article, I will attempt a comparative review by examining in the United States the crime that has the most affinity with the crime of honor in the Arab World: the killing of women in the heat of passion for sexual or intimate reasons, which is seen in the United States as one of many instances in which the more generic crime of passion can occur. For the purposes of this Article, I will use the term "crime of passion" as it is so specifically defined. The reason for the exercise is to locate precisely the meaning of the …