Law Commons^™

Ethics And The Settlement Of Mass Torts: When The Rules Meet The Road, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The settlement of mass torts through the class action device presents some difficult and troubling issues, including important questions of due process, fairness, justice, efficiency, equality, equity, and ethics. In this context, some of these foundational values conflict with each other and must be "resolved" by judges who must decide actual cases. In analyzing the applicable laws and rules (class action rules, constitutional provisions, and ethics rules) we find answers or suggestions that are often ambiguous or contradictory. All of these unresolved ambiguities raise the question of whether mass torts are any different from any number of difficult cases our …

The Original Understanding Of The Takings Clause And The Political Process, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation "goes too far" in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind …

Color-Coded Standing, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Remarkably, the Supreme Court has held that whites who wish to challenge the constitutionality of affirmative action plans have standing to do so. In Northeastern Florida Chapter of the Associated General Contractors v. City of Jacksonville the Supreme Court upheld the standing of non-minority construction contractors to challenge a minority setaside program under the Equal Protection Clause of the United States Constitution. What is remarkable is not that the result reached in the case was wrong, but that the Court was able to reach that result given its most recent standing precedents. In previous Terms, the Supreme Court had taken …

Environmental Justice Clinics: Visible Models Of Justice, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article examines and evaluates the contributions of environmental justice law clinics to pedagogy, law reform and legal services. The author bases her observations and conclusions on her experiences at Georgetown University Law Center where she teaches a course in environmental equity and supervises students in an environmental justice clinic.

Part II summarizes current knowledge about the incidences and causes of environmental inequity and the legal barriers to achieving environmental justice. This discussion highlights the distinctive aspects of environmental justice issues which influence the design of environmental justice clinical programs. Part III presents general information on legal clinical programs and …

Whose Dispute Is It Anyway? A Philosophical And Democratic Defense Of Settlement (In Some Cases), Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I have often thought myself ill-suited to my chosen profession. I love to argue, but I am often too quick to say both, "yes, I see your point" and concede something to the "other side," and to say of my own arguments, "yes, but, it's not that simple." In short, I have trouble with polarized argument, debate, and the adversarialism that characterizes much of our work. Where others see black and white, I often see not just the "grey" but the purple and red-in short, the complexity of human issues that appear before the law for resolution.

In the last …

Has The U.S. Supreme Court Finally Drained The Swamp Of Takings Jurisprudence? The Impact Of Lucas V. South Carolina Coastal Council On Wetlands And Coastal Barrier Beaches, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article argues that the Court's reliance on the law of property neither creates an internal inconsistency in takings law nor necessarily leads to further destruction of natural resources. Background principles of property law, such as custom and public trust, have long provided a basis for government protection of the public's interest in certain types of land, like the barrier beach David Lucas sought to develop.

Thus, the Lucas case need not be perceived as casting a constitutional cloud over laws protecting important ecosystems like wetlands and barrier beaches. The decision may not place these resources in greater danger from …

The Four Doctrines Of Self-Executing Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

A distinction has become entrenched in United States law between treaties that are "self-executing" and those that are not. The precise nature of this distinction--indeed, its very existence--is a matter of some controversy and much confusion. More than one lower federal court has pronounced the distinction to be the "most confounding" in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson's observation that " [t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion" surrounding it. The …

Collective Force And Constitutional Responsibility: War Powers In The Post-Cold War Era, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

The end of the Cold War has inaugurated a new era in international politics. The familiar terrain of the last half century has given way to a world that is, in many ways, more complex and turbulent. Regional conflicts, civil wars, ethnic strife, genocide, and humanitarian emergencies have exploded across the globe. As crises such as those in Bosnia, Somalia, and Haiti have unfolded, the international community increasingly has looked to the United States-as the last remaining superpower- to provide leadership and resources in a broad array of conflict situations.

Health Policy Below The Waterline: Medical Care And The Charitable Exemption, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

For almost one hundred years, America's nonprofit hospitals have enjoyed nearly automatic exemption from federal income taxation. During this time, nonprofit hospitals transformed themselves from resting places of last resort for the sick poor into centers of high-technology intervention for all income groups. The financing of their services evolved in parallel, from primary dependence on the generosity of religious orders and charitable donors, to almost exclusive reliance on payments for services rendered. Meanwhile, the exemption's doctrinal underpinnings were repeatedly reinvented to accommodate change in the hospital industry's financial structure and social role. When Congress first enacted a charitable exemption to …

Guns, Militias And Oklahoma City, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

While this Symposium on "The Second Amendment and the Right to Keep and Bear Arms" was in final stages of production a massive explosion ripped through a federal office building in Oklahoma City, Oklahoma, killing scores of men, women, and children. As this Foreword is being written the final count of casualties is still unknown. Also unknown at this time are the identities of all who were involved in planning and executing this crime. One man is in custody, but to this point he has chosen to remain silent. Another unknown suspect is still at large.'

Reverse Engineering And The Rise Of Electronic Vigilantism: Intellectual Property Implications Of "Lock-Out" Programs, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Over the past few years, there has been an abundance of scholarship dealing with the appropriate scope of copyright and patent protection for computer programs. This Article approaches those problems from a slightly different perspective, focusing on the discrete problem of lock-out programs. The choice of lock-out as a paradigm for exploring the interoperability question and the contours of copyright and patent protection of computer programs is informed by two considerations. First, for purposes of the interoperability inquiry, lock-out programs represent an extreme; they are discrete, self-contained modules that are highly innovative in design, yet that serve no purpose other …

Presidential Power: Should Bill Clinton Be Immune From Lawsuits On Allegations Of Past Acts?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

When former Arkansas state employee Paula Jones filed her complaint against Bill Clinton she joined a small group of women who have publicly accused men in high-profile positions of sexual harassment.

A classic "he said, she said" story? We may never know, if the president is able to argue successfully that his office shields him from liability for actions occurring prior to assuming it. On June 27, his lawyer, Robert Bennett, asked a federal court to delay action, and said he would be filing a separate motion in August on the issue.

The defense is based on the 1982 case …

The Word On Trial, Robin West

Georgetown Law Faculty Publications and Other Works

Milner Ball's extraordinary book, The Word and the Law, begins with a narrative account of "seven practices in law." The seven practitioners Ball brings to life for the reader share two powerful traits: they all, in quite different ways, use law to lessen the multiple sufferings of various communities of poor people, and they all, by doing so, strengthen the communities within which and for which they labor. The reader gains from these accounts not only a sympathetic understanding of the lives of seven lawyers, but a renewed sense of the possibilities their practices present. This can be put any …

The Constitution Of Reasons, Robin West

Georgetown Law Faculty Publications and Other Works

Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …

The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used …

Bad Trip: Drug Prohibition And The Weakness Of Public Policy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The case against prohibition is overwhelming precisely because so many different types of considerations all point to a single solution: the legalization of illicit drugs. The complexity of the case against prohibition means, however, that it cannot be presented adequately by a few anecdotes or even a lengthy essay. Nothing less than a book-length treatment will suffice and, fortunately, that book has been published. America's Longest War is an ambitious effort to evaluate the effectiveness of the policy of prohibition. It accomplishes this by marshalling the empirical research that has been done on both drugs and drug prohibition and then …

Law Reform In Estonia: The Role Of Georgetown University Law Center, J. Peter Byrne, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

On June 19, 1992, we and seven other members of the Georgetown University Law Center community landed in Tallinn, the capital of Estonia, to help the Estonian government draft laws to support a market economy. Our group consisted of six students, two professors, and an alumnus. The country to which we had come had declared its independence from the Soviet Union less than one year before. After fifty years of imposed communism, the Estonian leaders wanted to understand and adopt the basic foundations for a Western legal system that would support democratic and market institutions.

Securing Health Or Just Health Care? The Effect Of The Health Care System On The Health Of America, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The author first analyzes why the prevention of illness and promotion of health provide the leading justification for the government to act for the welfare of the population. His analysis focuses principally on the foundational importance of health for human happiness, the exercise of rights and privileges, and the formation of family and social relationships. He explains why health care, although critically important; is not the only, nor even the most important, determinant of health. Most morbidity and mortality in the United States is attributable to environmental conditions, pathogens, and human behavior, which are all more responsive to population-based interventions …

Objectivity In Legal Judgment, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

We are experiencing a crisis of confidence in the idea of objectivity. In scholarly circles, many are ready to discontinue talk of objectivity altogether, on the grounds that it has been nothing more than a mask for the oppressive practices of politically and economically privileged groups, promising neutrality where in fact there are only power relations. Some feminist legal scholars, some critical race scholars, and some critical legal studies scholars, along with some contemporary philosophers, argue that objectivity is inevitably a problematic, dangerous idea or ideal. Critics of objectivity sometimes argue that it can never be genuinely had, only claimed …

The Power Of Presumptions, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Once you start to notice it, you see it everywhere. Burden-shifting is pervasive.The author began to notice the power of presumptions when examining how to protect the rights "retained by the people" referred to in the Ninth Amendment without having to enumerate each one. He proposed the creation of a "presumption of liberty" that would extend the same protective presumption now accorded freedom of speech to all other rightful exercises of liberty. This presumption would shift the burden to the government to justify as necessary and proper any restriction on the rightful exercise of any liberty.

Beyond The Moot Law Review: A Short Story With A Happy Ending, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

When the author began teaching at the Chicago-Kent College of Law in 1982, it was publishing at great expense a law review that few cited, few professors would write for, and few, if anyone, read. For this reason, he dubbed it a "moot law review" in that students were working hard to produce a publication that mimicked "real" law reviews-that is, law reviews that contribute to intellectual discourse and the body of legal knowledge.

The fact that you are reading this page (and others in this issue) is evidence that the Chicago-Kent Law Review is no longer a moot law …

Working Papers As Federal Records: The Need For New Legislation To Preserve The History Of National Policy, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This article deals with policy records at the "front end" of their lives; that is, preserving them from destruction by federal agencies in the decades immediately after their creation. It does not deal with the destruction of archived documents by Archives officials themselves. It discusses only in passing the related question of how long a policy record should be sealed off from public inspection; the literature includes a variety of opinions on that subject. The author is content to leave to others the problem of just where to draw the balance between making historical documentation available soon enough so that …

...And Contractual Consent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In Part I, the author contends that when economists persistently ignore the importance of contractual consent, they are missing the crucial problem of legitimacy. In Parts II and IV, he responds to the criticisms of his consent theory of contract advanced by Jay Feinman and Dennis Patterson. Both Feinman and Patterson object to the enterprise in which the author and others are engaging, and he explains why each is wrong to dismiss the current debate over default rules. Finally, in contrast, in Part III the author shows how Steven Burton's theory of default rules, which he finds most congenial, is …

Foreword: "Do What You Can...", Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

"Do what you can with what you have." That's what Thurgood Marshall preached. That is how he lived. He used what he had to change the world forever.

Culture Clash In The Quality Of Life In The Law: Changes In The Economics, Diversification And Organization Of Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

There is no question that law practice has changed in recent decades. More lawyers work in larger units or newer forms of practice. Increasing numbers of lawyers come from previously excluded groups, including both women and minority demographic groups. After a period of economic boom there is general economic anxiety about the continued health and growth of the law "industry." This occurs as there is a general "speed up" in American work, the forms of law practice organization and billing for legal work are being renegotiated, and rates of dissatisfaction with the practice of law increase, especially among younger and …

Aiding And Abetting Persecutors: The Seizure And Return Of Haitian Refugees In Violation Of The U.N. Refugee Convention And Protocol, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

Pursuant to Executive Order 12,807 of May 23, 1992, the “Kennebunkport Order,” United States Coast Guard cutters have been intercepting boatloads of Haitian citizens in international waters off the coast of Haiti and turning them over to the Haitian authorities in Port-au-Prince. No questions are being asked to determine if any of these citizens are bona fide refugees fleeing persecution. All are simply returned.

Does the Protocol relating to the Status of Refugees (Protocol), to which the United States is a party, permit the U.S. government to do this? That question is now before the United States Supreme Court. Regarding …

Academic Freedom And Political Neutrality In Law Schools: An Essay On Structure And Ideology In Professional Education, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

My topic for this essay is the role of institutional political neutrality in fostering a vital academic freedom within a law school. It is necessary to explain what this inquiry embraces and why it is a useful entry into our concerns. Traditionally, the political neutrality of the university has been seen as the foundation for the academic freedom of the professoriate. But the media today vibrate with complaints about "political correctness" in legal education, meaning an administrative sponsorship of certain social ideals in a manner that restricts criticism or debate.1 Also, political contention over the shape of legal education has …

The Americans With Disabilities Act And The Corpus Of Anti-Discrimination Law: A Force For Change In The Future Of Public Health Regulation, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this paper the author reviews the constitutional history of the courts' attempts to check the powers of the public health department. He demonstrates how ineffective and inconsistent constitutional review has been, and suggests that adequate review criteria have not emerged. The author shows that, whether the courts are applying First, Fourth, or Fourteenth Amendment standards, ultimately they are highly deferential to public health officials. Then he carefully examines the key concepts in the Americans with Disabilities Act (ADA) as they apply to communicable disease. He reveals Congress' clear intention to include communicable disease, even asymptomatic infection, as a disability. …

Parsing Good Faith: Has The United States Violated Article Vi Of The Nuclear Non-Proliferation Treaty?, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The Nuclear Non-Proliferation Treaty (NPT) has long been the cornerstone of the international effort to retard the spread of nuclear weaponry to additional countries, now appreciated as the greatest post-cold war threat to international peace and security. Under this treaty, the parties also undertook to pursue in good faith additional negotiations leading to further reductions in nuclear weapons-and, in fact, such subsequent bargaining has recently yielded dramatic, far-reaching successes. Professor Koplow, however, argues that in one crucial respect, the United States has been derelict in implementing the obligations of the NPT: Recent American presidents have rigidly refused to participate in …

Prospective Overruling And The Revival Of ‘Unconstitutional' Statutes, William Michael Treanor, Gene B. Sperling

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Planned Parenthood v. Casey reshaped the law of abortion in this country. The Court overturned two of its previous decisions invalidating state restrictions on abortions, Thornburgh v. American College of Obstetricians and Gynecologists and Akron v. Akron Center for Reproductive Health, and it abandoned the trimester analytic framework established in Roe v. Wade. At the time Casey was handed down, twenty states had restrictive abortion statutes on the books that were in conflict with Akron or Thornburgh and which were unenforced. In six of these states, courts had held the statutes unconstitutional. Almost …