Law Commons^™

Book Review: New Chemical Weapons Convention: Implementation And Prospects, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Review of The New Chemical Weapons Convention: Implementation and Prospects by Michael Bothe, Natalino Ronzitti, and Allan Rosas (1998).

This book, a fine-grained, expert-level analysis of several of the most intricate legal and policy issues arising in connection with the 1993 Chemical Weapons Convention (CWC), also serves as a vivid symbol of the "coming of age" of arms control. For all their strategic significance and political innovation, earlier generations of arms control treaties--bilateral or multilateral, concerning nuclear, chemical, biological, or other weapons--could not plausibly have spawned this type of 600-page exegesis or inspired the painstaking, inch-by-inch explorations presented in its …

Damage Control? A Comment On Professor Neuman’S Reading Of Reno V. Aadc, David Cole

Georgetown Law Faculty Publications and Other Works

This comment responds to an article by Professor Gerald Neuman on the Supreme Court's recent decision in Reno v. American-Arab Anti-Discrimination Committee (AADC). The Court in AADC rejected a selective prosecution claim by immigrants targeted for deportation based on First Amendment-protected activities, finding that Congress had stripped the federal courts of jurisdiction over such claims, and that in any event the Constitution does not recognize a selective prosecution objection to a deportation proceeding. Professor Neuman argues that the decision should not be read as implying that aliens have less First Amendment protection than citizens, and that the decision can …

The "Normal" Successes And Failures Of Feminism And The Criminal Law, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

To write of feminist reform in the criminal law is to write of simultaneous success and failure. We have seen marked changes in the doctrines and the practice of rape law, domestic violence law, and the law of self-defense. There is not a criminal law casebook in America today, nor a state statute book, that does not tell this story. Yet for all of this success, we also live in a world in which reform seems to suffer routine failures. Many believe, for example, that feminist reforms have rid rape law of the resistance requirement; however, recent scholarship makes it …

Preemption & Human Rights: Local Options After Crosby V. Nftc, Robert Stumberg

Georgetown Law Faculty Publications and Other Works

In June 2000, the Supreme Court held in Crosby v. National Foreign Trade Council (NFTC) that federal sanctions against Burma preempted the Massachusetts Burma law. With its "Burma Law," Massachusetts sought to replicate the anti-Apartheid boycott, one of the most successful human rights campaigns in history. Massachusetts' Burma law authorized state agencies to exercise a strong purchasing preference in favor of companies that do not conduct business in Burma unless the preference would impair essential purchases or result in inadequate competition.

In Crosby, the Court held that Congress preempted the Massachusetts Burma law when it adopted federal sanctions on …

The Tax Of Physics, The Physics Of Tax, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

Sometimes ideas from science illuminate muddled legal thinking. Physics teaches that, for every particle of matter, there exists a corresponding particle of anti-matter. A particle of matter and its corresponding particle of anti-matter are identical except that they have opposite electrical charges. A proton's charge is positive, an anti-proton's negative. When matter and anti-matter meet, they produce the most powerful explosion in nature, totally annihilating each other.

With these laws of physics in mind, consider that a donor can make a gift in one of two ways: either by assuming a debt or by transferring as asset. In an instance …

Should Lucas V. South Carolina Coastal Council Protect Where The Wild Things Are? Of Beavers, Bob-O-Links, And Other Things That Go Bump In The Night, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Lucas v. South Carolina Coastal Council is one of several recent Supreme Court decisions in which the Court used the Just Compensation Clause as a "weapon of reaction" to strike down an offending land use restriction. In Lucas, the target of the Court's animus was a state law prohibiting a landowner from developing two beachfront lots. The South Carolina Supreme Court upheld the law as a legitimate exercise of the State's police power to protect the public from harm in the face of a takings challenge by the landowner. The U.S. Supreme Court rejected the South Carolina court's talismatic …

The Public And Private Lives Of Presidents, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Focusing on a frequent theme in the executive privilege arguments advanced by the Clinton Administration, Neal Kumar Katyal explores the distinction drawn between the public and private lives of the President, particularly in the Paula Jones and Monica Lewinsky cases. He argues that the Administration's difficulties in asserting executive privilege claims following these cases demonstrate that the public/private distinction is not entirely valid He asserts that, unlike members of Congress who have time when they are not in session, the President is unique in that he is in office twenty-four hours a day. He argues that this special constitutional status …

Taking Myths Seriously: An Essay For Lawyers, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The specific idea I want to explore has to do with the motivational power of myths and illusions on a personal level. To take a mundane example, people are often told to "believe in themselves." The underlying idea seems to be that high self confidence is an important motivator, especially in competitive settings like school, sports, business and the professions. This is not the idle talk of family and friends; millions of dollars are spent each year by people and their employers on motivational books and programs that offer endless variations on this simple theme in an effort to bolster …

A Reexamination Of The Distinction Between "Loss-Allocating" And "Conduct-Regulating Rules", Wendy Collins Perdue

Georgetown Law Faculty Publications and Other Works

In this paper, I disagree with the premise that all tort rules can be meaningfully classified as either compensatory or deterrent. I argue that most tort rules are both and that "the compensation and deterrence goals ascribed to the tort system cannot be separated.” I then explore the impact on the Louisiana tort choice of law code of this alternative understanding of tort law. My analysis begins with the proposition that all tort rules are loss-allocating. A liability rule shifts the loss from the injured victim to the tortfeasor; conversely a rule of no liability means that the loss, no …

Is The Rule Of Law Cosmopolitan?, Robin West

Georgetown Law Faculty Publications and Other Works

What I will argue in the bulk of the paper is that whether or not the rule of law implies ethical cosmopolitanism depends: it depends on how we understand or interpret the legalistic sense of justice that law and the rule of law seemingly require. The virtue that we sometimes call legal justice, and the correlative meaning of the rule of law to which it is yoked, can plausibly be subjected to a range of different interpretations, each resting on quite different understandings of the point of law and of what the individual law is meant to protect. Some of …

On Causation, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

In this Essay, Professor Matsuda argues that the narrow dyadic focus of tort law perpetuates very real, and remediable, social harms. Using tort causation doctrine as her starting point, Professor Matsuda demonstrates how the tort system sacrifices human bodies to maintain the smooth flow of the economic system. Time after time, tragedies occur: school systems fail, first graders shoot each other, women live in constant fear of rape. Yet each tragedy is met with the same systematic response: those without resources, those least able to correct the harm, are considered the legal cause of the harm. The economic and corporate …

Taking Stock: New Views Of American Labor Law Between The World Wars, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

This symposium originated in a session at the annual meeting of the American Society for Legal History held in Seattle in October 1998. Entitled "Labor, Law, and the State in the Interwar Period," the panel provided four different views of a decisive period in the development of labor law in the United States. In the 1980s the panel's chair, Katherine Van Wezel Stone, and commentator, Christopher L. Tomlins, published works that helped spark a modern revival in the historical study of U.S. labor law. The authors of the four papers presented at the session were more recent entrants into the …

Dc Consortium Of Legal Service Providers: Legal Services 2000 Symposium, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

My main point is to urge you to the see what is possible in the way of what I might call a public health approach to lawyering for the poor. In a public health approach you find something that has polluted the river and you clean it up at its source instead of just treating its victims one by one. In legal and societal terms, when we are discussing why so many children are growing up poor and dying a slow death of disappointment, the challenge is to think about it in a public health way. Of course we cannot …

Remarks, John H. Jackson

Georgetown Law Faculty Publications and Other Works

The limits of international trade must be understood within the context of the institutional framework of the WTO, in particular, the decision-making and dispute settlement processes. The WTO dispute settlement rules are contained in the Dispute Settlement Understanding (DSU), which is Annex 2 to the WTO agreement. The DSU includes some comments on the philosophy, the direction and the purposes of the dispute settlement procedures. Article 3.2 of the DSU has some very interesting phrases. One of those phrases (roughly paraphrased) says, ''None of the reports of the dispute settlement procedure should result in a change, addition, or subtraction from …

Ensuring Able Representation For Publicly-Funded Criminal Defendants: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

While there are skilled private defense lawyers who enthusiastically represent indigent criminal defendants, too often defense lawyers whose income depends upon appointments provide deplorable representation. The problem is well known and pervasive. In addition to the blizzard of claims on appeal of ineffective representation, defenders' efforts have been savaged by judges and by fellow lawyers. These nagging problems persist: to induce private lawyers to represent their clients effectively by eliciting the defendant's story and managing their relationship in a way that at least does not displease the defendant; investigating his and the prosecution's positions; pressing the prosecution for discovery, for …

A Report Card On The Impeachment: Judging The Institutions That Judged President Clinton, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Now that we have lived through one of the most unusual events in American history-the impeachment and trial of the President of the United States-it is appropriate, indeed essential, that we assess how the process worked and learn what we can from it. Specifically, I want to address two questions: First, how well did the impeachment process work? In good academic fashion, I will grade each of the governmental institutions involved – giving them, if you will, a report card. Second, what did we learn from the experience to guide us if, in the future, we face the impeachment of …

Cross-Border Insider Trading, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Currently, there is no formal SEC policy on when U.S. insider trading rules (or indeed Rule l0b-5 generally) will be applied extraterritorially. If one can glean anything from SEC action during the last twenty years, it is that the trading site - the use of U.S. market mechanisms - that counts most. Certainly, neither the trader nor the issuer need be U.S.-based. What I wish to do in this paper is articulate what I think is sensible enforcement policy for a nation - whether the U.S. or any other - to adopt. By this, I do not want to focus …

The First Principles Approach To Antitrust, Kodak, And Antitrust At The Millenium, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In this essay, I reflect on an important contribution to the development of antitrust reasoning and law that arises out of the Supreme Court's decision in Eastman Kodak Co. v. Technical Services, Inc. In particular, I discuss the decision's relationship to what I have termed the "first principles" approach to market power and antitrust. In my view, one reason that Kodak is important is that it does not take a wooden approach in its economic reasoning. Instead, the opinion nimbly applies the basic principles of competitive analysis to a difficult dynamic context. This enables the majority to avoid rigid adherence …

Competitive Effects Of Partial Ownership: Financial Interest And Corporate Control, Steven C. Salop, Daniel P. O'Brien

Georgetown Law Faculty Publications and Other Works

In this article, we set up an economic framework for analyzing the competitive effects of partial ownership interests. We have three main goals. First, we conceptually derive and explain the competitive effects of partial ownership, explaining its key elements and drawing analogies to the key ideas behind the analysis of horizontal mergers. Second, we present a general framework for evaluating the competitive effects of partial ownership that is analogous to, but at the same time recognizes key differences in the standard analysis for evaluating horizontal mergers. Third, we examine several methods of quantifying these competitive effects.

Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.

The Rise Or The Fall Of International Law?, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

This Article argues that traditional international law is healthy in the sense that there are more international agreements than ever, and States continue to serve important roles in the international system. It is falling, however, as the sole focus of international legal efforts. It is necessary to redefine international law to include actors other than States among those who make international norms and who implement and comply with them, and to include legal instruments that may not be formally binding. These developments raise three important issues: the need for the new actors to be accountable and for the new norms …

Race, Class And Criminal Prosecutions: The Supreme Court’S Role In Targeting Minorities, David Cole

Georgetown Law Faculty Publications and Other Works

In No Equal Justice, I examine the ways in which race and class disparities have an effect at each stage of the criminal justice system. Much of the disparity concerns discriminatory police practices. My argument is that the Supreme Court, and our society, have constructed a set of rules that virtually ensure there will be racially disparate prosecution of the criminal law by the police. The way the Court has done that, I suggest, is by creating pockets of discretion that police can use without having to identify any objective, individualized basis for suspicion. When the police are free to …