Law Commons^™

Artists Don't Get No Respect: Panel On Attribution And Integrity, Rebecca Tushnet, Jonathan Band, Robert Clarida, Eugene Mopsik

Georgetown Law Faculty Publications and Other Works

When I was considering the question of the moral right to attribution and how unauthorized fan creativity relates to that concept, it struck me that there are two interesting issues from a theoretical perspective. The first is: who gets the credit? When I was in law school and discovered fan fiction, the reason why I got into intellectual property was because most of these stories had a disclaimer-no copyright infringement intended, these characters aren't mine, I'm not making any money, please don't sue. And as a student, my question was – does that work? Is that good enough? I was …

Introduction: The Fifth Annual A.A. Sommer, Jr. Lecture On Corporate, Securities & Financial Law, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Welcome and Introduction to the Fifth Annual A. A. Sommer, Jr. Lecture on Corporate, Securities & Financial Law, November 9, 2004 at Fordham University School of Law.

Fordham Law School, with the support of Morgan, Lewis & Bockius, inaugurated the A. A. Sommer, Jr. Lecture Series in the fall of 2000 with the timely insights of the Securities and Exchange Commission's (the "SEC" or the "Commission") then-Chair Arthur Leavitt. Since then, the Sommer Lecture has continued to bring to Fordham such heavyweights as Mary Schapiro, President of National Association of Securities Dealers ("NASD") Regulation, Inc., SEC Commissioner Harvey Goldschmid, and …

Cured Meat And Idaho Potatoes: A Comparative Analysis Of European And American Protection And Enforcement Of Geographic Indications Of Foodstuffs, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

Geographic indications, as defined by the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement"), are "indications which identify a good as originating in the territory of a member or region or locality in that territory where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin."

While the general concept of protecting geographically-significant products from competition has existed for centuries, the protection provided to geographic indications varies significantly, both between countries and according to the product being protected.

Since the protection of foodstuffs in both Europe and America is a less …

Misassigning Income: The Supreme Court And Attorneys' Fees, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

This past term's Supreme Court decision in Commissioner v. Banks and Commissioner v. Banaitis distorts foundational principles, known as assignment of income law, which help identify the person who must report income for federal tax purposes. The Court holds that assignment of income principles require a plaintiff to report as income the portion of a recovery paid to the plaintiffs attorney as a contingent fee. As a result, the plaintiff is taxed at excessively high rates, which may in some cases equal or exceed a confiscatory 100%. Taxing the plaintiff on the attorney-fee portion of a recovery also undermines the …

Academics And The Federal Circuit: Is There A Gulf And How Do We Bridge It?, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Many of the great research universities of the United States enjoy a close relationship with innovators. Names like Carnegie, Cornell, Hopkins, Stanford, and Vanderbilt bring to mind not so much these men, but the academic institutions that they founded. The mention of other research institutions, such as the Universities of Chicago and Virginia, allows us to recall entrepreneurial founders such as Rockefeller and Jefferson. It is appropriate then, to consider how university research - and in particular, the work product of the law schools - is faring before that court whose rulings most directly impact American innovation policy.

Torture's Truth, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this Article, I argue that the obstacles to having a serious conversation about torture are exacerbated by a truth that torture teaches us - a truth that we cannot afford fully to know and, so, frantically try to obscure. Law is about respect for commitments and limits, and the existence of torture challenges the possibility of such respect. If we are prepared to torture, then, it would seem, we are prepared to do anything, and the restraint that law purports to impose upon us is a fraud. Torture's truth, then, is that all of our promises to ourselves and …

Past, Present, And Future Of Antitrust Enforcement At The Federal Trade Commission, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

The period from 1970 to the present - roughly a third of a century - has witnessed profound changes in the quality of regulation at the Federal Trade Commission and a remarkable convergence of antitrust enforcement policy between left and right, and between primarily legal as opposed to primarily economic approaches. With respect to substantive law, areas of intellectual debate and uncertainty remain, but viewpoint differences that existed between the 1960s and the 1980s are today vastly reduced. In the 1960s, emphasis was on populist values, hostility to "Bigness," protection of competitors (especially small business) as opposed to the competitive …

Book Review Of Luc Reydams, Universal Jurisdiciton: International And Municipal Legal Perspectives (2003), David Luban

Georgetown Law Faculty Publications and Other Works

Some crimes are so odious that committing them makes one hostis generis humani (an enemy of all mankind). Intuitively, the idea of a universal enemy implies the possibility of universal criminal jurisdiction (UCJ). As Luc Reydams notes, the notion of UCJ originated in the 16th century with Covarruvias, although the idea is better known through Grotius's famous assertion that every state has jurisdiction over "gross violations of the law of nature and of nations, done to other states and subjects" (De Jure Belli ac Pacis, AC Campbell trans., II.20.VII). For many years piracy was the only recognized UCJ crime, not …

Book Review Of Jean Stefancic & Richard Delgado, How Lawyers Lose Their Way: A Profession Fails Its Creative Minds (2005), Milton C. Regan

Georgetown Law Faculty Publications and Other Works

"How Lawyers Lose Their Way" claims that lawyers' unease stems from a distinctive source: their excessive use of and exposure to "formalism" in their work. I think that they are on to something, but the analysis in this book is too underdeveloped to provide much insight into what it is. The authors' use of the term "formalism" risks being so inclusive that it loses explanatory power. In addition, their claim that overreliance on formalism is the chief culprit in lawyers' unhappiness is vulnerable to the charge that lawyers arc suffering the effect of trends in the workplace affecting a wide …

Neutralizing Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Part I of this article argues that the Supreme Court lacks the institutional competence to formulate racial policy for the nation, and highlights the tension that exists between the Court's abstract preference for race neutrality and the concrete reality of contemporary race relations, in which dedicated efforts to promote racial balance offer the only meaningful hope of eliminating systemic discrimination. Part II discusses moderate strategies that can be used to deflect the impact of Grutter’s prohibition on racial balance, suggesting that racial balancing can be restructured in ways that the Supreme Court may view as constitutional. Part III discusses …

"Meet The New Boss": The New Judicial Center, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet's discussion of the Supreme Court's "new center. " The Guidelines urged Department of Justice litigators to foster a nearly exclusive reliance on original understanding in constitutional interpretation and to resort to legislative history only as a last resort. The Guidelines also advised Department of Justice litigators to seek substantive legal changes including more restrictive standing requirements, an end to the creation of unenumerated individual rights, greater constitutional protection of property rights, and greater limits on congressional power. …

The Lawless Adjudicator, Robin West

Georgetown Law Faculty Publications and Other Works

First, on the "lawless adjudicator." The question I want to pose is this: Why is it so hard for the legal academy - and the legal profession - to come to grips with the bare logic of the charge, much less the case, that Vere acted lawlessly, and therefore criminally, and indeed murderously, when he willfully distorted the governing law, so as to execute Billy? Why has this quite specific legal claim not received more of a hearing? Is it because Weisberg was not sufficiently considerate in his communication of this idea? On first blush that seems implausible: It is …

Teaching Enron, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

What follows is a discussion of several transactions that the Examiner analyzed for the Enron bankruptcy court. These represent only a portion of the many transactions that the Examiner analyzed, but constitute a large number of the transactions with respect to which he focused on the conduct of attorneys. In most of these cases, the Examiner found that Enron's lawyers potentially could be liable to the company under various causes of action. In some instances, the Examiner did not find potential liability. These transactions are included in my discussion, however, because they can be used to explore certain ethical issues …

Direct Vs. Indirect Obligations Of Corporations Under International Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

International law today addresses the conduct of private corporations in a variety of areas. With very few exceptions, however, international law regulates corporate conduct indirectly--that is, by requiring states to enact and enforce regulations applicable to corporations and other non-state actors. Only a small number of international legal norms--primarily those relating to war crimes, crimes against humanity, and forced labor--apply directly to non-state actors. Scholars have argued forcefully that international law should move in the direction of directly imposing obligations on corporations. These arguments overlook important aspects of the problem. If international legal norms were extended to corporations and backed …

Terrorist Speech And The Future Of Free Expression, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive …

Refocusing On Women: A New Direction For Policy And Research On Intimate Partner Violence, Lisa A. Goodman, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

A key question facing researchers of intimate partner violence is how the real-life contexts of victims’ lives should affect state policy. The bulk of recently adopted and much touted criminal justice reforms have taken the form of relatively inflexible, one-size-fits-all mandatory responses focused on counseling, restraining, and punishing batterers. Even the protection order system relies far more heavily on batterer treatment programs than on victim support to prevent future violence. Together, these reforms have largely sacrificed the contextualized, woman-centered focus from which the anti-domestic violence movement originated. Recently, however, a small body of research has emerged indicating that responding flexibly …

What Iraq And Argentina Might Learn From Each Other, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Iraq and Argentina each launched a $100 billion debt restructuring last year. The two cases are rarely mentioned together. Most think of Argentina as the quintessential case of financial globalization gone awry - a lapsed market reformer that sank under the weight of (depending on your perspective) misguided liberalization or its own financial chutzpah, and took with it Argentine depositors, Italian retirees, Japanese banks, and offshore investment funds. Iraq's debt has a distinctly preglobalization flavor. Most of its obligations precede the recent wave of financial liberalization. In the words of Iraq's own advisers, its debt restructuring is a quintessential geopolitical …

The Civil Rights Act Of 1964 And Coalition Politics, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

Professor Days began his Childress Lecture by recounting his personal experience with Jim Crow segregation. I too have such a story. I was born and raised in Hunstville, Alabama, a city that is notable, among other things, for having desegregated its public accommodations in 1962, two full years before the passage of the Civil Rights Act of 1964. The turning point in the non-violent sit-in movement in Hunstville was when a young, African- American woman was arrested with a four-month-old baby in her arms, along with a friend who was eight months pregnant. This caused some outrage and widespread press …

Liberalism, Torture, And The Ticking Bomb, David Luban

Georgetown Law Faculty Publications and Other Works

Torture used to be incompatible with American values. Our Bill of Rights forbids cruel and unusual punishment, and that has come to include all forms of corporal punishment except prison and death by methods purported to be painless. Americans and our government have historically condemned states that torture; we have granted asylum or refuge to those who fear it. The Senate ratified the Convention Against Torture, Congress enacted antitorture legislation, and judicial opinions spoke of "the dastardly and totally inhuman act of torture.” Then came September 11.

Lawyers As Upholders Of Human Dignity (When They Aren't Busy Assaulting It), David Luban

Georgetown Law Faculty Publications and Other Works

David Luban argues in this lecture that the moral foundation of the lawyer's profession lies in the defense of human dignity-and the chief moral danger facing the profession arises when lawyers assault human dignity rather than defend it. The concept of human dignity has a rich philosophical tradition, with some philosophers identifying human dignity as a metaphysical property of individuals-a property such as having a soul, or possessing autonomy. Luban argues instead that human dignity is a relational property of "the dignifier" and "the dignified," emphasizing that assaulting human dignity humiliates the victim. Lawyers honor the human dignity of others …

Welfare, Dialectic, And Mediation In Corporate Law, William W. Bratton

Georgetown Law Faculty Publications and Other Works

Bill Klein extends an idealistic and progressive invitation with the Criteria for Good Laws of Business Association (the Criteria). The structure of our debates, he says, prevents us from joining the issue. The discourse will move forward if we can isolate core components on which we agree and disagree. The invitation, thus directed, is well-constructed. To facilitate engagement, each criterion is set out as pari passu with each other. And there is a good reason for the inclusion of each listed criterion. Each has an established place in public and private law jurisprudence. Each has influenced results, coming forth as …

Claim Re-Construction: The Doctrine Of Equivalents In The Post-Markman Era, John R. Thomas

Georgetown Law Faculty Publications and Other Works

In the post-Markman era, the Federal Circuit has focused attention on the public notice function of patent claims in equivalents cases, and it has come to emphasize precision and accuracy in claim drafting. This Article argues that recent judicial emphasis on the public notice function of patent claims is an inappropriate innovation policy. The demand for highly refined patent claims increases patent acquisition expenditures that are unlikely to increase social welfare, cause patent rights to be distributed unevenly, and are inconsistent with the structural features of the patent system. This Article presents two mechanisms to accommodate the doctrine of equivalents …