Law Commons^™

Assessing The Impeachment Of President Bill Clinton From A Post 9/11 Perspective, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The impeachment of President Clinton was more a circus than a serious effort to remove the President of the United States. The reason is simple: Few people--in the Congress or the country--wanted to remove him or believed the impeachment effort would actually result in his removal. Instead, it was a partisan political effort to embarrass Clinton and "send a message" of disapproval. Congress was attaching a "scarlet letter." But this was an indulgence that posed considerable danger that few in Congress considered. In particular, few tried to assess the potential impact this use of the process would have on the …

The Federal Rules Of Civil Settlement, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement

This Article begins by providing …

Confucian Virtue Jurisprudence, Linghao Wang, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.

This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of …

Community Economic Development And The Paradox Of Power, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

This article starts from the premise that poverty is a growing problem in the United States. Intergenerational poverty, the entrenchment of a class of very poor people, is a major sub set of that problem and is tied very closely to the issue of race. The author claims that missing in the fight by the poor and their allies against stratified poverty is the creation and utilization of power. This paper examines the disparate ways in which commentators have defined power. It suggests that those seeking to obtain power must understand the concept’s varying meanings and direct their activities to …

Book Review Of The Future Of School Integration: Socioeconomic Diversity As An Education Reform Strategy, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

The last decade has seen a quiet but steady expansion of interest in using socioeconomic diversity in schools to improve educational outcomes. Ten years ago, only a few school districts around the country used formal strategies to integrate their schools along class lines. Today, over eighty school districts around the United States, together educating around four million students, ensure that poor children are taught alongside middle-class and wealthier children through a variety of voluntary integration programs. The message of The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, the important new book edited by Richard Kahlenberg, is …

Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.

With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including …

Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …

Alien Tort Claims And The Status Of Customary International Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peńa-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was …

Can An Old Dog Learn New Tricks? Applying Traditional Corporate Law Principles To New Social Enterprise Legislation, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

Seven U.S. states have recently adopted the benefit corporation or the flexible purpose corporation—two novel corporate forms intended to house social enterprises, i.e., those ventures that pursue social and environmental missions along with profits. And yet, these corporate forms are not viable or sustainable if they do not attract social entrepreneurs or social investors due to the lack of understanding and inquiry into how traditional corporate law principles will be applied to them. This article begins this necessary examination. As a first approach, this article assesses shareholder primacy and the shareholder wealth maximization norm in the context of the sale …

Train Wreck: The U.S. Violation Of The Chemical Weapons Convention, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under …

Of Wife And The Domestic Servant In The Arab World, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The author asserts to avoid common misunderstandings on the relevance of Sharia to modern women in the Arab World that a) Shari’s relevance to the lives of modern women in the Arab World has been largely confined to the area of family law, b) in the modern nation state Sharia has been codified, i.e., certain rules derived from Islamic jurisprudence on the family have been selected and passed as laws, each nation state having its own unique combination of such rules, c) the courts and the judges who adjudicate disputes on family law are either secular courts/judges, or judges trained …

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

Lessons From Social Psychology For Complex Operations, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This short essay looks at several social forces that powerfully affect human behavior, often trumping individual “character,” personality, knowledge, and even deeply held moral beliefs. Specifically, this essay looks briefly at issues of obedience, conformity, and group polarization, discussing the ways in which they can affect and distort individual behavior. Ultimately, this essay suggests, understanding these dynamics can have important implications for how we think about counterinsurgency and stability operations.

National Security In The Information Age, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The information environment has been changing right along with the broader security environment. Today, the information environment connects almost everyone, almost everywhere, almost instantaneously. The media environment has become global, and there’s no longer such thing as “the news cycle” —everything is 24/7. Barriers between US and global publics have virtual disappeared: Everything and anything can “go viral” instantly, and it’s no longer possible to say one thing to a US audience and another thing to a foreign audience and assume no one will ever set the statements side by side. The Pakistani military has a very clear idea of …

The Disdain Campaign, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as …

That The Laws Be Faithfully Executed: The Perils Of The Government Legal Advisor, David Luban

Georgetown Law Faculty Publications and Other Works

Suppose you practice business law. Your client comes to you and says "We have a major deal in the works. It is aggressive and cutting edge, and we need an opinion from you saying that it is legal." Obviously, you cannot promise that. First, you need to know what the deal is. So, you examine the documents and carefully analyze the law. Unfortunately, you have only bad news to report: the deal is illegal, and there is no way to fix it. But with a little creative stretching of the law and some body English you could make a case …

Faith And Fidelity: Originalism And The Possibility Of Constitutional Redemption, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Constitutional Redemption: Political Faith in an Unjust World by Jack Balkin (2011) and Living Originalism by Jack M. Balkin (2011).

Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: "Originalism remains even now a powerful vehicle for conservative mobilization. ..." "[L]iving constitutionalism...has been at the core of progressive constitutional thought since the 1970s." "[A]ny reasonably well-informed observer knows that the term 'living Constitution' encodes liberal sympathies, just as originalism encodes conservative ones. ..." "[O]riginalism cannot easily be appropriated to progressive constitutional arguments." …

Money And Meaning: The Moral Economy Of Law Firm Compensation, Milton C. Regan, Lisa H. Rohrer

Georgetown Law Faculty Publications and Other Works

This article, part of an ongoing qualitative research project on law firm culture, analyzes the role of compensation in the modern law firm. At first blush, the significance of the compensation process may seem obvious: it represents an economy in which the firm distributes material rewards to its partners. From this perspective, disputes and dissatisfaction regarding compensation are simply attempts by partners to improve their financial well-being.

Our research suggests, however, that compensation serves to distribute not just money, but also respect. Compensation thus represents the operation of both a material and a moral economy within a firm. As a …

Bankruptcy, Backwards: The Problem Of Quasi-Sovereign Debt, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This Feature considers the debts of quasi-sovereign states in light of proposals to let them file for bankruptcy protection. States that have ceded some but not all sovereign prerogatives to a central government face distinct challenges as debtors. It is unhelpful to analyze these challenges mainly through the bankruptcy lens. State bankruptcy posits an institutional fix for a problem that remains theoretically undefined and empirically contested. I suggest a way of mapping the problem that does not work back from a solution. I highlight the implications of sovereign immunity, immortality, concurrent authority, macroeconomic policy, and democratic accountability for quasi-sovereign debt …

The Coming Water Crisis: A Common Concern Of Mankind, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

This essay argues that fresh water, its availability and use, should now be recognized as ‘a common concern of humankind’, much as climate change was recognized as a ‘common concern of humankind’ in the 1992 United Nations Framework Convention on Climate Change, and conservation of biodiversity was recognized as a ‘common concern of humankind’ in the 1992 Convention on Biological Diversity. This would respond to the many linkages between what happens in one area with the demand for and the supply of fresh water in other areas. It would take into account the scientific characteristics of the hydrological cycle, address …

Historic Preservation And Its Cultured Despisers: Reflections On The Contemporary Role Of Preservation Law In Urban Development, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued …

The Limits Of Government Regulation Of Science, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The recent controversy over the National Science Advisory Board for Biosecurity’s (NSABB) request that Science and Nature redact key parts of two papers on transmissible avian (H5N1) influenza reveal a troubled relationship between science and security. While NSABB’s request does not violate the First Amendment, efforts to censor the scientific press by force of law would usually be an unconstitutional prior restraint of the press absent a compelling state interest. The constitutional validity of conditions on grant funding to require pre-publication review of unclassified research is unclear but also arguably unconstitutional.

The clearest case where government may restrict publication is …

Does The Constitution Protect Economic Liberty?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The author defends the proposition that the Court in Lochner v. New York was right to protect the liberty of contract under the Fourteenth Amendment. He does not defend its use of the Due Process Clause to reach its result. As he explains, the Court should have been applying the Privileges or Immunities Clause. Nor does he contend that the Court was correct in its conclusion that the maximum‐hours law under consideration was an unconstitutional restriction on the liberty of contract. Although the statute may well have been unconstitutional, the author does not take the time to evaluate that claim. …

Carving Out Policy Autonomy For Developing Countries In The World Trade Organization: The Experience Of Brazil And Mexico, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Although liberal trade and development scholars disagree about the merits of the World Trade Organization (WTO), they both assume that WTO legal obligations restrict states’ regulatory autonomy. This article argues for relaxing this shared assumption by showing that, despite the restrictions imposed by international economic law obligations, states retain considerable flexibility to carve out policy autonomy. The article makes three distinct contributions. First, it analyzes how active WTO members can, through litigation and lawyering, influence rule interpretation to advance their interests. Second, the article redefines the concept of “legal capacity” in the WTO context and introduces the term “developmental legal …

Misplaced Fidelity, David Luban

Georgetown Law Faculty Publications and Other Works

This paper is a review essay of W. Bradley Wendel's Lawyers and Fidelity to Law, part of a symposium on Wendel's book. Parts I and II aim to situate Wendel's book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel's argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence in the midst of moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of "the …

Judulang V. Holder And The Future Of 212(C) Relief, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, a case addressing the Board of Immigration Appeals’ use of the comparable grounds approach for determining eligibility for relief under former section 212(c) of the Immigration and Nationality Act. The Court held that this approach was arbitrary and capricious under the Administrative Procedure Act, and remanded for the agency to determine a new way for determining the eligibility of deportable aliens for 212(c) relief. The purpose of this article is to place the Court’s decision in its proper historical context and to chart the …

What Were They Thinking? Insider Trading And The Scienter Requirement, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

On its face, the connection between insider trading regulation and the state of mind of the trader or tipper seems intuitive. Insider trading is a form of market abuse: taking advantage of a secret to which one is not entitled, generally in breach of some kind of fiduciary-like duty. This chapter examines both the legal doctrine and the psychology associated with this pursuit. There is much conceptual confusion in how we define unlawful insider trading—the quixotic effort to build a coherent theory of insider trading by reference to the law of fraud, rather than a more expansive market abuse standard—which …