Law Commons^™

Uncle Sam Is Watching You, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Toward A New Constitutional Anatomy, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In …

Pandemic Influenza: Public Health Preparedness For The Next Global Health Emergency, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Severe Acute Respiratory Syndrome (SARS) garnered a great deal of public attention because it was novel and its potential for spread was unknown. However, the SARS corona virus is significantly less virulent than pandemic influenza viral infections. The annual number of deaths for seasonal influenza is 36,000 people in the United States and 250,000- 500,000 worldwide. However, highly pathogenic influenza pandemics have occurred roughly 2-3 times per century, causing untold morbidity and mortality. The Spanish influenza pandemic of 1918 was believed to have caused over 20 million deaths in a world less than one-third the size of the current global …

The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this paper I will explore the idea of a "neutral" lawyer who may have neither "client" (in the conventional sense of client) to represent nor advocacy to perform, yet still be functioning fully as a lawyer or "learned professional" schooled in the law. Indeed, in this paper I will suggest that lawyers may be especially useful in performing a variety of "new" functions that depart from traditional conceptions of the lawyer's role, but which lawyers may be especially well suited to perform. It may be counter-cultural to think of lawyers as "consensus builders," rather than as advocates or makers …

Albert Einstein, Esq., Steven Goldberg

Georgetown Law Faculty Publications and Other Works

Albert Einstein’s 1905 paper setting forth the special theory of relativity is one of the most famous scientific articles ever written. Peter Galison’s influential book, Einstein’s Clocks, Poincaré’s Maps: Empires of Time (2003), demonstrates that Einstein’s paper was fundamentally shaped by his work as a patent examiner by showing that arguments previously seen as abstract thought experiments were instead derived from Einstein’s work on patent applications for devices that coordinate clocks. Moving beyond Galison’s insights, we can see portions of Einstein’s paper as reflecting the quasi-judicial role of a patent examiner. Like trial judges, patent examiners must apply settled legal …

Introduction: Rawls And The Law, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Professor John Rawls of Harvard University, who died in November of 2002, is widely regarded as the most important political philosopher of the twentieth century, and his influence on legal thought was particularly profound. There have been a number of conferences or symposia on Rawls's individual books, such as A Theory of Justice and Political Liberalism, but, astonishingly, until the symposium presented in this issue of the Fordham Law Review was held in November 2003, no symposium or conference had focused on the implications of his work for the law. Simply because of its subject, then, this symposium was of …

The Politics Of (Mis)Recognition: Islamic Law Pedagogy In American Academia, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The combination of presence (of Islamic law) and absence (of legal transplant) in the course materials assigned by Islamic law instructors, the scholarship on law in the Islamic world by Islamic law scholars as well as by Comparatists, betrays an ideological project. I would describe it as an identitarian one with an underlying teleological notion of history. By identitarian I mean the positing of a common identity shared by all "Muslims" based on their religio/legal beliefs, a project that to my mind recalls what I called earlier the "fantasy effect." "[F]antasy is the means by which real relations of identity …

Executive And Judicial Overreaction In The Guantanamo Cases, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court in Rasul v. Bush and Al-Odah v. United States held that detainees at Guantanamo Bay may challenge their detentions via writs of habeas corpus. Justice Stevens' majority opinion held that "the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." This holding is potentially unbounded, perhaps enabling someone detained at Kandahar or even Diego Garcia to challenge his detention via the great writ. It appears to be a striking break from the 1950 Johnson v. Eisentrager decision, which strongly intimated that …

Deliberate Extinction: Whether To Destroy The Last Smallpox Virus, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The target problem to be examined is smallpox. Specifically, what should we (the United States and the entire world) now do with the last known residual samples of the virus that causes this uniquely horrific disease? The illness itself has virtually disappeared from the catalogue of human afflictions: due to a stunningly imaginative, concerted, and resolute campaign of the World Health Organization (WHO) through the 1970s, no one has contracted this deadly impairment for twenty-five years. Yet the causative element, an insidious scourge known as the variola virus, still remains, housed for now in high-security freezers at the U.S. Centers …

Folktales Of International Justice, David Luban

Georgetown Law Faculty Publications and Other Works

When Laura Dickinson asked me to participate on this panel, she very nicely said that she hoped I could bring a different perspective to the discussion. I thought I knew what she meant. The other panelists share a profound knowledge of how international criminal-law institutions work. My "different perspective" would therefore be the perspective of abject ignorance.

Taking comfort from the Socratic dictum that there is wisdom in knowing what you do not know, I accepted the invitation because it gives me the opportunity to pose questions rather than proposing answers. I will raise my questions by examining some stories …

The Secret Life Of The Political Question Doctrine, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."

The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming …

Rules, Principles, And The Accounting Crisis In The United States, William W. Bratton

Georgetown Law Faculty Publications and Other Works

The Sarbanes-Oxley Act and the Securities Exchange Commission move too quickly when they prod the Financial Accounting Standards Board, the standard setter for US GAAP, to move immediately to a principles-based system. Priorities respecting reform of corporate reporting in the US need to be ordered more carefully. Incentive problems impairing audit performance should be solved first through institutional reform insulating the audit from the negative impact of rent-seeking and solving adverse selection problems otherwise affecting audit practice. So long as auditor independence and management incentives respecting accounting treatments remain suspect, the US reporting system holds out no actor plausibly positioned …

Introduction: Fordham Sports Law Forum, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Introduction to the Fordham Sports Law Forum at Fordham University School of Law.

Since its founding in 1996, the Fordham Sports Law Forum has attracted numerous distinguished speakers to the school who have graciously shared their expertise and insight into the intersecting worlds of sports, law, and business. These participants have greatly enriched and invigorated the academic environment for many of your students and have made this venue one of the highlights of the academic year.

Pari Passu And A Distressed Sovereign's Rational Choices, William W. Bratton

Georgetown Law Faculty Publications and Other Works

Part I describes the disruptive role the pari passu clause plays in sovereign debt compositions, stating the case favoring the narrow reading. Part II reconsiders the economic incentives in play at the time lenders close loans to sovereigns, stating a case for the broad reading. Part III works the competing readings through the legal framework of bond contract interpretation. The exercise shows that the matter comes down to a choice between an ex ante reading, conducted as of the time the contract is executed and delivered, and an ex post reading, conducted as of the later time of distress. The …

Living With Lawrence, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This Article will proceed in three steps. First, I will examine the Court's treatment of liberty. I see Lawrence as marking the emergence of a new approach to substantive due process analysis, one that has been simmering in the concurring opinions of Justices Souter, Stevens, and Kennedy for the last decade. These three Justices apparently now have a majority for extending meaningful constitutional protection to liberty interests without denominating them as fundamental rights. They also appear to be jettisoning, at least prospectively, a special category for privacy rights. Second, I will turn my attention to the ramifications of Lawrence's equality …

Panel Ii: Public Appropriation Of Private Rights: Pursuing Internet Copyright Violators, Rebecca Tushnet, Michael Carlinsky, Justin Hughes, Sonia Katyal

Georgetown Law Faculty Publications and Other Works

It seems to me that the story of music on the Internet over the past five or six years is the story of two fantasies colliding. The first fantasy is that information wants to be free, that with the Internet we can throwaway all the bottles and just have the wine and the free flow of data, which apparently was generated from somewhere and then circulated forever. So, there was that fantasy, that we would not need copyright anymore because everything would be available to everyone. The other fantasy is the record companies' fantasy of perfect control, that there would …

Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …

The Original Meaning Of The Judicial Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this paper, the author refutes any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. He will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as he can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the …

The Moral Foundations Of Modern Libertarianism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Libertarians no longer argue, as they once did in the 1970s, about whether libertarianism must be grounded on moral rights or on consequences; they no longer act as though they must choose between these two moral views. In this paper, the author contends that libertarians need not choose between moral rights and consequences because theirs is a political, not a moral, philosophy, one that can be shown to be compatible with various moral theories, which is one source of its appeal.

Moral theories based on either moral rights or on consequentialism purport to be comprehensive, insofar as they apply to …

Was The Right To Keep And Bear Arms Conditioned On Service In An Organized Militia?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent by H. Richard Uviller & William G. Merkel (2002).

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional …

Procedural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This article begins in part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?

The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question--what is procedure?--is the most difficult and requires an extensive …

The Burdens Of Representing The Accused In An Age Of Harsh Punishment, Abbe Smith

Georgetown Law Faculty Publications and Other Works

The crimes are not any worse than they used to be. They run, as crimes do, from the banal to the barbarous. But punishment seems to have taken on a life of its own.

There are people serving more than twenty years for nonviolent drug offenses. There are people serving more than thirty years for car theft, burglary, and unarmed robbery--crimes for which a harsh sentence used to be ten years. One Oklahoma woman is serving a thirty-five year sentence for "till-tapping"--stealing money out of cash registers--when she was in the throes of a heroin addiction. It is impossible to …

The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole

Georgetown Law Faculty Publications and Other Works

Three aspects of Bruce Ackerman’s thesis, which is a proposal to legitimate the practice of suspicionless preventive detention during emergencies, are discussed in this essay—its premises, its efficacy, and its morality. Part I critiques three of Ackerman’s premises—his underestimation of courts and overestimation of legislatures as guardians of liberty, his misguided belief that the supermajoritarian escalator provides a one-size-fits-all solution to the conundrum of emergency powers, and his contention that the short-lived character of emergencies makes it sensible to cede to a minority of our popular representatives control over critically important and largely unpredictable decisions concerning the appropriate duration of …

Upending Status: A Comment On Switching, Inequality, And The Idea Of The Reasonable Person, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article reviews Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, by Cynthia Lee (2003).

Cynthia Lee has written a hard-hitting and insightful book on bias and the law of homicide. Her purpose is to document how murder law’s “reasonable person” may absorb the unreason of prejudice in its various forms (from biases of race to gender to sexual orientation). Doctrinally, Lee’s book is wide-ranging and ambitious, covering a variety of standard defenses, such as provocation (chs. 1–3) and self-defense (chs. 5–7), in contexts ranging from excessive use of force to intimate homicide, from hate …

Response To State Action And A New Birth Of Freedom, Robin West

Georgetown Law Faculty Publications and Other Works

I have just a few comments. The first comment is a contribution to the ''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not think it is sufficient-although it may well be necessary-to show that the "state action" problem is merely a pseudo-problem, whatever the reason for finding it not to be a problem. I do not agree with one of the claims put forward by Peller and Tushnet,' that Black's perceptive analysis of the state action problem in his …

Lecture Commentary On Islam And International Law: Toward A Positive Mutual Engagement To Realize Shared Ideals, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

An-Na'im as I read him is postulating a process theory when it comes to the relationship of Islamic law to international law. He is advocating a bargaining relationship in which the Islamic side and the international side meet as equals in negotiating their contributions to the universal international. This process-based equality can only be achieved if, first, the international eschews its We sternness and the Islamic retains its internal sense of diversity, indeed secularism. The international abandons its Westernness when it abandons its pre-World War II impulse to colonize, imperialize, and hegemonize, acts which at heart render equality in the …

Book Review Of Mark E. Wojcik, Illinois Legal Research (2003), Jennifer Locke Davitt

Georgetown Law Faculty Publications and Other Works

Designed as a "teaching tool rather than a bibliographic compilation of state legal research sources" (p.xviii), "Illinois Legal Research" provides practical instruction primarily to law students. It can also serve as a ready reference tool for practitioners and others interested in researching laws specific to Illinois.

Mark Wojcik, associate professor of law at the John Marshall Law School in Chicago, begins with a quick review of basic legal research methods and gives tips for developing effective and efficient research skills. He transitions into in-depth explanations of Illinois law, covering topics such as constitutions, judicial decisions, statutes and ordinances, administrative law, …

The Effect Of The United States Supreme Court's Eleventh Amendment Jurisprudence On Clean Water Act Citizen Suits: Muddied Waters, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article focuses on the impact of the Court's Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA), because that law's cooperative federalism structure is typical of many other environmental laws, and because citizen suits have historically played a critical role in its implementation. The CWA's citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought on citizen suits the full force and effect of the Court's current state sovereign immunity jurisprudence. The prevailing wisdom is that the Court's state sovereign immunity jurisprudence will not bar CWA citizen suits brought to enforce federal …

Modernizing Muslim Family Law: The Case Of Egypt, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced. The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law-from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes-is given. Islamic law has …