Law Commons^™

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 …

Writing Off Race, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, …

Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin West

Georgetown Law Faculty Publications and Other Works

Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship -- only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted -- particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep -- although it has come …

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.

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 …

Twins At Birth: Civil Rights And The Role Of The Solicitor General, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

It is painful even today to contemplate the awful devastation wreaked upon this nation by the War Between the States. But like most cataclysms, the Civil War also gave birth to some important positive developments. I would like to talk with you today about two such offspring of that war, and the extent to which, like many sibling pairs, they have influenced each other's development. The first child - the most well-known progeny of the Civil War - was this country's commitment to civil rights. The war, of course, ended slavery. But it did not - and could not - …

Escaping The Expression-Equality Conundrum: Toward Anti-Orthodoxy And Inclusion, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this article, Professor Hunter questions the naturalness and inevitability of the dichotomy in constitutional law between freedom of expression and the right to equality. She places the origin of this doctrinal divergence in the history of American social protest movements in the first half of the twentieth century, which began with ideologically-based claims and shifted to a primary emphasis on identity-based equality claims. During the interim period between World War I and World War I, the wave of seminal First Amendment cases was ebbing and the wave of equality claims was beginning to swell. Close examination of the constitutional …

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 …

“Environmental Racism! That’S What It Is.”, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

In this essay, Professor Lazarus discusses former NAACP director the Rev. Dr. Benjamin Chavis's characterization of U.S. environmental policy as "environmental racism." He first justifies this provocative topic choice and then suggests that Chavis's allegation has transformed environmental law. Professor Lazarus next discusses the details of this transformation, arguing that Rev. Chavis has essentially reshaped the way environmental law and justice are conceived. He offers examples of various environmental programs and social and political effects traceable to Chavis's environmental racism comment. Finally, the conclusion provides some of the author's ruminations about the future of environmental law and policy.

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 …

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 …

Localism, Self-Interest, And The Tyranny Of The Favored Quarter: Addressing The Barriers To New Regionalism, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This article argues that our nation's ideological commitment to decentralized local governance has helped to create the phenomenon of the favored quarter. Localism, or the ideological commitment to local governance, has helped to produce fragmented metropolitan regions stratified by race and income. This fragmentation produces a collective action problem or regional prisoner's dilemma that is well-known in the local governance literature.