Law Commons^™

The Man Behind The Torture, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but we know less about the choices people make about copyright on a daily basis, especially when they are not at work. Thus, this article examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Fans justify their unauthorized derivative works as legitimate, no matter what formal copyright law says, with …

The Grand Inquisitors, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Defense Of Torture, David Luban

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Terrorism And Trial By Jury: The Vices And Virtues Of British And American Criminal Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

British tradition and the American Constitution guarantee trial by jury for serious crime. But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways. First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence. Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, …

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …

"I Ain't Takin' No Plea": The Challenges In Counseling Young People Facing Serious Time, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Criminal defendants daily entrust their liberty to the skill of their lawyers. The consequences of the lawyer’s decisions fall squarely upon the defendant. There is nothing untoward in this circumstance. To the contrary, the lawyer as the defendant’s representative is at the core of our adversary process.

As practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even trial lawyers: we talk with and advise clients. As criminal lawyers know, the decision whether to go to trial is “the most important single decision” a client faces, and requires wise counsel. …

The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith

Georgetown Law Faculty Publications and Other Works

As all practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even criminal trial lawyers: we talk with and advise clients. Sometimes, after considering the government’s case and available defenses, we advise clients to go to trial. More often, we advise them to take a plea.

In counseling our clients we can be as “client-centered” as the next lawyer, graciously acceding to our clients’ wishes. This is especially so when the client is making what we regard to be a reasonable choice. But clients are not always reasonable. Sometimes they are …

The Flood: Political Economy And Disaster, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

As summer faded to fall in 2005, a hurricane hit New Orleans, a city so unique in its history that it has more history than many American cities. It was nonetheless an American city in these telling parameters: a city of luxury alongside squalor, two-thirds Black, one-fourth poor, with the gap between its rich and poor growing at a gallop as the waters of lake and river lapped gently along aging, grass-covered levees.

Freeze the frame before the waters rise, and what do you see? A devastated public school system, where Black children are labeled “failing,” along with their schools. …

Legislative Compromise And Tax Transition Policy, Michael Doran

Georgetown Law Faculty Publications and Other Works

The extensive literature on legal transitions has formed a general position in favor of establishing a governmental transition policy; the primary debate concerns whether the policy should be one of systematically mitigating or not mitigating transition losses. Arguments on both sides generally have assumed a sharp dichotomy between a substantive legal change and the transition treatment associated with the substantive change. Focusing on federal tax legislation, this article challenges that assumption and the normative conclusions that it supports.

Specifically, this article identifies compromise as an important component of the tax legislative process and argues that the ability to provide or …

Book Review: Social Justice: The Moral Foundations Of Public Health And Health Policy, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is a review of Social Justice: The Moral Foundations of Public Health and Health Policy by Madison Powers & Ruth Faden (2006).

In this pathbreaking book, senior bioethicists Powers and Faden confront foundational issues about health and justice. How much inequality in health can a just society tolerate? In a world filled with inequalities in health and well-being, which inequalities matter most and are the most morally urgent to address? In order to answer these questions, Powers and Faden develop a unique theory of social justice that, while developed for the specific contexts of public health and health …

What’S International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces an immediate and continuous threat of terrorist attack using weapons of mass destruction, including nuclear weapons. The intelligence function and national security law, including international law--or more accurately transnational law--are central to addressing this threat. Indeed, international law is more relevant today in addressing this threat than it was before September 11. Part II of this article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Part …

Mris And The Perception Of Risk, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

The most important safety decision concerning MRIs was to change the name of the procedure. In the late 1970s, the procedure known as nuclear magnetic resonance (NMR) became magnetic resonance imaging (MRI) because of the negative connotations the word “nuclear” invited. The change was understandable since MRIs do not expose patients to dangerous radiation: “nuclear” was in the original name because basic research on the atomic nucleus led to the development of MRIs. The main cost of the name change was to obscure the important link between basic research and useful medical technologies.

In recent years, however, MRIs, a generally …

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …

The "Tobacco Wars" - Global Litigation Strategies, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The Framework Convention on Tobacco Control (FCTC) identifies civil and criminal litigation as a public health strategy and promotes international cooperation (reporting, technical assistance, and information exchange). Holding the tobacco industry accountable through civil and criminal liability serves a number of public health objectives: punishes companies for hiding known health risks, manipulating nicotine content, and misleading the public; deters and preve nts future harmful behavior; compensates individuals and stake-holders for health care and other costs associated with smoking and exposure to environmental tobacco smoke (ETS); raises prices, resulting in lower tobacco consumption; increases disclosure of health risks, through labeling and …

Global Regulatory Strategies For Tobacco Control, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Recent tobacco control regulation in North America and Western Europe has had a salutary effect, even if smoking remains a pressing public health hazard. But in the 21st century, the tobacco industry has quietly moved its locus of activity to lucrative, emerging markets: the vast populations in Africa, Asia, Eastern Europe, and Latin America. The poorest, least educated, and sickest people on earth inhabit these regions. "Big Tobacco's" new marketing strategy will cause untold morbidity for the world's most vulnerable.

However, there are a variety of effective tobacco control policies that nations can and should enact. The World Health Organization …

National Security And Environmental Laws: A Clear And Present Danger?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Without question, life in the United States has changed significantly since September 11, 2001. The attacks launched from within the United States in broad daylight against non-military targets and innocent civilians, followed by the intentional dispersal of the biological agent anthrax, ushered in an era of uncertainty and fear in this country unlike any in recent memory. The visible manifestations of this fear are still with us--concrete barriers and the closing of public spaces around public buildings, heightened security at airports and train stations subjecting people to invasive searches of their persons and belongings, the sudden, seemingly random appearance of …

Restorative Justice: What Is It And Does It Work?, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced — criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews — by examining empirical studies of the processes in different settings — how restorative justice has been criticized, what its limitations and achievements might be, and how it might be understood. I explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials and for their actual …

New Hope For Corporate Governance In China?, James V. Feinerman

Georgetown Law Faculty Publications and Other Works

China's recent revisions to its Company Law and Securities Law have brought new attention to issues of corporate governance in Chinese companies and financial markets. Among the chief criticisms of the earlier laws - in both their provisions and application - were the lack of protection for minority shareholders, the paucity of independent directors, the absence of transparency and inadequate financial disclosure. The acknowledged need for greater congruence between Chinese law and practice and that of countries with more developed capital markets led to the proposal of amendments to China's legislation during the first half of this decade. This article …

Guilty Pleas And Barristers' Incentives: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of …

Network Stories, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In 1962, Rachel Carson named the natural environment. Scientists were beginning to understand the complex web of ecological cause and effect; naming that web gave it independent existence and invested that existence with political meaning. In 1996, James Boyle named the cultural environment. Boyle’s act of naming was intended to jumpstart a political movement by appropriating the complex web of political meaning centered on the interdependency of environmental resources.

But naming, although important, is only a beginning. The example of the natural environment shows us that to build from a name to a movement requires two things. First, you have …

Private Standards, Public Governance: A New Look At The Financial Accounting Standards Board, William W. Bratton

Georgetown Law Faculty Publications and Other Works

The Financial Accounting Standards Board (the "FASB") presents a puzzle: How has this private standard setter managed simultaneously (1) to remain independent, (2) to achieve institutional stability and legitimacy, and (3) to operate in a politicized context in the teeth of opposition from its own constituents? This Article looks to governance design to account for this institutional success. The FASB's founders made a strategic choice to create a regulatory agency that sought independence rather than political responsiveness. The FASB also set out a coherent theory of accounting, the "Conceptual Framework," to contain and direct its decisions. The Conceptual Framework contributed …

Pandemic Influenza: Ethics, Law, And The Public's Health, Lawrence O. Gostin, Benjamin E. Berkman

Georgetown Law Faculty Publications and Other Works

Highly pathogenic Influenza (HPAI) has captured the close attention of policy makers who regard pandemic influenza as a national security threat. Although the prevalence is currently very low, recent evidence that the 1918 pandemic was caused by an avian influenza virus lends credence to the theory that current outbreaks could have pandemic potential. If the threat becomes a reality, massive loss of life and economic disruption would ensue. Therapeutic countermeasures (e.g., vaccines and antiviral medications) and public health interventions (e.g., infection control, social separation, and quarantine) form the two principal strategies for prevention and response, both of which present formidable …

Father Charles Whelan: A Career In The Service Of Others, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Fordham Law School's motto, "In the service of others," perfectly captures our law school's great aspirations and commitments. In a most distinguished and multifaceted career, Father Charles Whelan has been the personal embodiment of that ideal, through his dedication to education, to advocacy, and to service to a broader community. His has been a career shaped by his Ignatian ideals, and the legacy he leaves as he retires is extraordinary.

Refugee Roulette: Disparities In Asylum Adjudication, Andrew I. Schoenholtz, Jaya Ramji-Nogales, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. In many cases, the most important moment in an asylum …

Pursuing Accountability For Atrocities After Conflict: What Impact On Building The Rule Of Law?, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

In countries ravaged by widespread violence, the trauma does not end when the guns fall silent. On the contrary, atrocities have cast a long shadow in places such as the Balkans, where brutal massacres, mass rapes, and ethnic cleansing were regular features of war; in Rwanda, where a devastating genocide killed hundreds of thousands of people; and in Sierra Leone, where the civil war was marked by forced recruitment of child soldiers, rapes and murders, and the gruesome mutilation of civilians. In Afghanistan, Iraq, East Timor, and many other societies, severe abuses have also left deep pain and trauma in …

On Leaving Corporate Executives "Naked, Homeless And Without Wheels": Corporate Fraud, Equitable Remedies, And The Debate Over Entity Versus Individual Liability, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

There is a lively debate about the relative merits of entity versus individual liability in cases involving securities fraud. After reviewing this debate in the context of both private securities litigation and SEC enforcement, this paper considers whether the legal tools available against individual executives are adequate, and if not, what changes might be made. The main focus is on equitable remedies, especially rescission and restitution, under both state and federal law. As to the former, Vice Chancellor Strine’s opinion in In re Healthsouth offers an interesting template, although there are limits on the usefulness of derivative suits to police …

Biomedical Research Involving Prisoners: Ethical Values And Legal Regulation, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Until the early 1970's, approximately 90% of all pharmaceutical research was conducted on prisoners, who were also subjected to biochemical research, including studies involving dioxin and chemical warfare agents. By the mid-1970's, biomedical research in prisons sharply declined as knowledge of the exploitation of prisoners began to emerge and the National Commission for the protection of Human Subjects of Biomedical Research was formed. Federal regulations to protect human subjects of research were established in 1974. Special protections for prisoners were added in 1978, severely limiting research involving prisoners. However, the US correctional system has undergone major changes since the adoption …

Climate Change And The Clean Air Act, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In Massachusetts v. EPA, petitioners - twelve states, three cities, an American territory, and numerous health and environmental groups - have asked the Supreme Court to hold that the Clean Air Act gives EPA the power to regulate greenhouse gas emissions from motor vehicles and that EPA may not decline to exercise this power based on statutorily irrelevant factors. The problem petitioners ultimately seek to address - climate change - is unique in its scope and complexity. But the legal issues before the Court in Massachusetts v. EPA are neither particularly grand nor particularly complex. They are the kinds of …

Corporations And Commercial Speech, Ronald Collins, Mark Lopez, Tamara Piety, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

Even though we are discussing a case that was not decided on the merits, Nike v. Kasky is an important case because it crystallizes two of the essential critiques about the commercial speech doctrine, critiques that have run through this doctrine from before its advent in 1976 to today. The fundamental debate Nike triggered over what constitutes "commercial speech" and how strictly commercial speech should be regulated is still being played out - not just in the academy, but also in the courts on a day-to-day basis. So this is a timely and important topic.