Law Commons^™

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

The Constitutional Duty Of A National Security Lawyer In A Time Of Terror, James E. Baker

Georgetown Law Faculty Publications and Other Works

National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001.

The State Of Asylum Representation: Ideas For Change, Andrew I. Schoenholtz, Jonathan Jacobs

Georgetown Law Faculty Publications and Other Works

The plight of refugees-those who flee persecution-touches a chord with Americans, who have supported both a substantial overseas resettlement program and a fair system for asylum seekers. U.S. laws provide a seemingly full opportunity for asylum applicants to explain their fear or actual experience of persecution. In fact, the U.S. offers an extensive process of interviews, hearings, and appeals to ensure that bona fide refugees are not sent back to their persecutors. The substantive law, too, has been developed considerably through administrative and judicial precedents. But how meaningful is a process that, no matter how extensive and developed, leaves asylum …

The National Security Process And A Lawyer’S Duty: Remarks To The Senior Judge Advocate Symposium, James E. Baker

Georgetown Law Faculty Publications and Other Works

September 11 changed so much about our lives and how we perceive national security. Harold Lasswell, in an earlier context, described the sharing of danger throughout society as the “socialization of danger,” which he wrote was a permanent characteristic of modern violence; but not for America until September 11. The socialization of danger has made ordinary citizens participants in the national security process in a way not previously experienced. In addition, it has brought relatively unknown federal agencies, like the Federal Emergency Management Agency and the Centers for Disease Control, to the forefront of national security planning and response. And …

Never Trust A Corporation, William W. Bratton

Georgetown Law Faculty Publications and Other Works

I would like to start by noting multitudinous objections to assertions made in Larry Mitchell's Corporate Irresponsibility: America's Newest Export. But I waive these points for purposes of this Symposium. I would prefer to take the occasion to celebrate the book. So I will make two points on the subject of corporate social responsibility on which the book and I stand in complete accord.

State-Supported Terrorism And The U.S. Courts: Some Foreign Policy Problems, Barry E. Carter

Georgetown Law Faculty Publications and Other Works

Terrorism is an evil that the United States and other civilized countries should combat aggressively. Fortunately, these countries have many tools they can use in their fight against terrorism, among them military force (as we have just demonstrated in Afghanistan), covert actions, and a variety of economic sanctions against a country or group that supports terrorists. These sanctions - which would preferably be applied in union with other countries, though unilaterally if necessary - can include freezing assets, as well as ending or limiting U.S. government programs (ranging from landing rights to foreign aid), cutting off exports to or imports …

The Inside Scoop: What Federal Judges Really Think About The Way Lawyers Write, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

A recent survey indicates that what troubles federal judges most is not what lawyers say but what they fail to say when writing briefs. Although lawyers do a good job articulating legal issues and citing controlling, relevant legal authority, they are not doing enough with the law itself. Only fifty-six percent of the judges surveyed said that lawyers “always” or “usually” make their client’s best arguments. Fifty-eight percent of the judges rated the quality of the legal analysis as just “good,” as opposed to “excellent” or “very good.” The problem seems to be that briefs lack rigorous analysis, and the …

The Nationalization Of Health Information Privacy Protections, Lawrence O. Gostin, James G. Hodge Jr., Lauren Marks

Georgetown Law Faculty Publications and Other Works

In Part II, this article examines the justifications for implementing comprehensive national health information privacy regulations, including the personal nature of health information and the increasing threats to personal privacy from the shift to an electronic health information infrastructure. In doing so, it looks at historical attempts by federal and state officials to regulate the use and disclosure of personal health information, and concludes that prior standards have been largely inadequate. In Part III, this article explains the new national health information privacy regulations: (1) what do they cover?; (2) to whom do they apply?; (3) how do they safeguard …

When Lawyers And Law Firms Invest In Their Corporate Clients’ Stock, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

I will state my conclusion at the outset. I am not convinced that lawyers' investments in clients in lieu of fees are problematic enough from a conflicts standpoint that the rules of professional responsibility should treat them as presumptively inconsistent with the lawyer's fiduciary responsibility. Lawyers' investments in their clients do raise interesting and unsettling issues, but these issues are not qualitatively different from issues raised by many other norms or practices within the legal profession that also threaten lawyerly objectivity. Indeed, in contrast to some other practices, these fee arrangements can, in some respects, enhance objectivity, or at least …

A Midrash On Rabbi Shaffer And Rabbi Trollope, David Luban

Georgetown Law Faculty Publications and Other Works

Thomas Shaffer is the most unusual, and in many ways the most interesting, contemporary writer on American legal ethics. A lawyer impatient with legalisms and hostile to rights-talk, a moral philosopher who despises moral philosophy, a Christian theologian who refers more often to the rabbis than to the Church Fathers, a former law school dean who is convinced that law schools have failed their students by teaching too much law and too little literature, a traditionalist who' wholeheartedly embraces feminism, an apologist for the conservative nineteenth-century gentleman who describes his own politics as "left of center," Shaffer is a complex …

Judicial Activism In The Regulatory Takings Opinions Of Justice Scalia, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

If the question is whether the Court's recent property rights decisions represent unwarranted judicial activism, my answer is an unequivocal "Yes!" Explaining why requires some care. After all the jurisprudential battles of the recent past, it is hard to state what makes a decision "activist," let alone unwarrantedly so.

Tradition, Principle And Self-Sovereignty: Competing Conceptions Of Liberty In The United States Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United …

Demystifying Disclosure: First Steps, Ronald A. Pearlman

Georgetown Law Faculty Publications and Other Works

I have chosen to discuss tax shelter disclosure for two reasons. First, I think much of the tax shelter problem is attributable to the historic lack of effective tax enforcement. Second, unlike Weisbach, I think enhanced disclosure - that is, some level of disclosure over and above that required by current law and administrative practice would contribute to improved enforcement and increase voluntary compliance. After some preliminary comments, I discuss three functions of a mandatory tax return disclosure regime. I then address some important implementation issues. I identify potentially relevant tax compliance literature, although my review of the literature has …

Terrorizing Immigrants In The Name Of Fighting Terrorism, David Cole

Georgetown Law Faculty Publications and Other Works

It is often said that civil liberties are the first casualties of war. It may be more accurate to say that immigrants' civil liberties are the first to go. In the wake of the devastating terrorist attacks of September 11, we all feel vulnerable in ways that we have never felt before, and many have argued that we may need to sacrifice our liberty in order to purchase security. In fact, however, what we have done is to sacrifice the liberties of some-immigrants, and especially Arab and Muslim immigrants-for the purported security of the rest of us. This double standard …

The Organizational Psychology Of Hyper-Competition: Corporate Irresponsibility And The Lessons Of Enron, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

What I want to do here is first explain my fears and then explore the Enron story from the standpoint of both social psychology and organizational behavior. My sense going in, at least, is that the social forces and selfish norms that emerge fairly naturally in highly competitive settings such as these dominate as behavioral influences over anything but high-powered legal controls. The kind of firm that I want to concentrate on is the "new economy" sort that requires a high rate of creative productivity from a large number of key managers and employees. Thus, I will put to the …

When Litigation Is Not The Only Way: Consensus Building And Mediation As Public Interest Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

British social philosopher Stuart Hampshire recently articulated the fundamental and foundational principles of the modem conflict resolution movement (and I do call it a movement). He asserted that, "there will always be a plurality of different and incompatible conceptions of the good and there cannot be a single comprehensive and consistent theory of human virtue. Correspondingly, "our political enmities in the city or state will never come to an end while we have diverse life stories and diverse imaginations.'' Hampshire, a socially progressive, socialist philosopher hoped to articulate universal conceptions of the good. In his lifetime of reflection on this …

A Subversive Strand Of The Warren Court, Gary Peller

Georgetown Law Faculty Publications and Other Works

The choice between "de jure" and "de facto" standards of review arises whenever a legal standard is needed to identify violations of specific constitutional rights or norms in particular cases. The issue is methodological in the sense that the question is faced regardless of the particular right or norm at issue (although it is not really true that the choice between these methodologies would have no influence on the choice of rights or norms to apply). A de Jure approach limits the imposition of constitutional norms to cases in which the state has affirmatively acted to help create a particular …

Comment On Professor Carrington's Article "The Independence And Democratic Accountability Of The Supreme Court Of Ohio", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In my view, whether or not Article III is written as members of a new constitutional convention might write it, there is nothing more fundamental to the way our entire judicial system operates (including in many ways, although indirectly, our state courts) than federal judges being as independent as law can make them. Perhaps I suffer from Burkean skepticism about reform of long-standing institutions, or perhaps I am merely a supporter of the status quo. But I believe that, despite obvious drawbacks in giving anyone life tenure in any job, we gain far more than we lose by making federal …

The Limits Of Being "Present At The Creation", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Having been invited late to this Symposium and having read fewer than all essays, I offer, (with deep appreciation for the invitation), only mini-comments on three of the many valuable contributions: the essays by Professors Persily, Hasen, and Gerken. But first, at risk of pedantry, may I suggest changing the Symposium's title to something like "Baker and its Progeny .... (or "Baker, doughnuts, and holes"?). Most of the treatment seems to be about the progeny, as surely it should be. While of course everyone knows how far Baker went, what Reynolds did, and what was not done until after Reynolds, …

Law And Prudence In The Law Of Justiciability: The Transformation And Disappearance Of The Political Question Doctrine, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay develops the foregoing argument by examining, in Section I, the transformation of the political question doctrine from Baker v. Carr through Walter Nixon v. United States. Section II charts a similar, perhaps even more dramatic transformation of the law of standing. Section I then examines Bush v. Gore, explaining how older doctrines of standing and political questions might have been thought relevant there. It argues as well that the very fact that those doctrines went unmentioned by the Court shows why we must take a historically grounded view of justiciability doctrines. Section IV sketches the historical settings in …

Corporate Norms And Contemporary Law Firm Practice, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Larry Mitchell's book describes the movement toward share price maximization by corporate managers. More intensive market competition both domestically and abroad has led managers to believe that their corporations have little choice but to focus on short-term profits. This practice leads to greater instability for corporate workers and efforts to externalize other costs on third parties. It also intensifies the erosion of "local" cultural practices that are seen as impediments to profit maximization, whether they are associated with countries abroad, communities in the United States, or within the corporation itself. In this process, the norms of the market gain increasing …

Liberty And Property In The Patent Law, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Patents have seldom troubled civil libertarians. A specialized form of property, patents seemed pertinent to the technologies of traditional industry but little else. Patent instruments offered their readers mere technical documentation; patent cases presented no more than the mapping of a text onto an instantiated artifact; patent policy was principally oriented toward economic optimization of the length and scope of protection. Unbound from technology, contemporary patent law now seems a more robust discipline. Modern patent instruments appropriate a diverse array of techniques that span the entire range of human endeavor. Patent claims, cut loose from physical moorings, have grown more …

Protecting Plaintiffs' Sexual Pasts: Coping With Preconceptions Through Discretion, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Part I of this Article traces the development of the civil application of Rule 412, the so-called “Rape Shield Rule”. Part II analyzes the inconsistencies within the cases decided under the new civil rule and links those inconsistencies to the language of the rule. It identifies the trends within the cases about what constitutes probative value for purposes of the rule and how courts assess prejudice. The Article concludes that rules of evidence designed to remedy bias of fact finders should not be cast as discretionary. Many of the problems that arise in the interpretation of Rule 412 could be …

What Would It Take To Feel Safe?, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

What would it take to make people feel safe? What message will those who would wage peace offer to this beleaguered planet? There is indeed a threat. I will call that threat terrorist fascism because that is what it is. It thwarts human beings in pursuit of the most basic need identified by psychologists: The need to feel their bodies are safe. This threat is horrible indeed, and the road to ending it is long and hard. I do not know all we need to do to end terrorist fascism, but what I know of history tells me that militarism …

Invoking State Responsibility In The Twenty-First Century, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

This essay reviews the articles on the invocation of state responsibility, analyzes them in historical context, and notes where they represent progressive development of international law. It then surveys a wide range of contemporary situations where individuals, other nonstate entities, and international organizations invoke state responsibility by initiating judicial or other formal complaint proceedings. The essay concludes that, in light of this contemporary practice, the articles usefully advance the codification and development of international law but do not deal sufficiently with the right of individuals and nonstate entities to invoke the responsibility of states.

Enron And The Dark Side Of Shareholder Value, William W. Bratton

Georgetown Law Faculty Publications and Other Works

This Article addresses the implications that the Enron collapse holds out for the self-regulatory system of corporate governance. The case shows that the incentive structure that motivates actors in the system generates much less powerful checks against abuse than many observers have believed. Even as academics have proclaimed rising governance standards, some standards have declined, particularly those addressed to the numerology of shareholder value. The Article's inquiry begins with Enron's business plan. The Article asserts that there may be more to Enron's "virtual firm" strategy than meets the eye beholding a firm in collapse. The Article restates the strategy as …

The Humbugs Of The Anti-Regulatory Movement, Lisa Heinzerling, Frank Ackerman

Georgetown Law Faculty Publications and Other Works

It is so hard to get beyond cynicism these days. Even a symposium devoted to this goal has, as reflected in the articles by Professors Cynthia Farina, Jeffrey Rachlinski, and Mark Seidenfeld, succeeded primarily in suggesting that regulators are not so much selfish as they are obtuse, stubborn, and sometimes downright dumb. Undoubtedly this is true some of the time. But Farina, Rachlinski, and Seidenfeld want to convince us that it is true enough of the time to warrant quite large-scale solutions. In this Comment, we take issue with this pessimistic assessment of regulatory behavior by discrediting the most prominent …

A Tribute To Paul Szasz, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

Throughout the world, Paul Szasz has garnered everyone's respect for his intellect, his uncompromising integrity, his innate sense of fairness, and his dedication. Paul treated everyone the same, whatever the nationality. He passionately believed in international law. Even in the last 20 months when he was ill, he continued to live and breathe the life of international law, flying repeatedly to Geneva, to Rio, to The Hague, to California, and elsewhere to advise on international negotiations for a framework convention to control tobacco or to present a paper. Paul was an inspiration to people around the world, young and old. …

The Complex Uses Of Sexual Orientation In Criminal Court, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Times may or may not be changing for gay people in the criminal justice system--and for the import of sexual orientation in criminal law. It depends on the nature of the case and, more importantly, exactly whose sexual orientation we are talking about.

Signs of positive change include the recent high profile Matthew Shepard and Diane Whipple cases, in which gay and lesbian homicide victims were mourned not only by the gay community, but also by the entire country. It was no doubt helpful that both Shepard and Whipple presented very appealing images of gay people: each was young, attractive, …

Yale Rosenberg: The Scholar And The Teacher Of Jewish Law, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

In the early 1980s, when he was a young professor at the University of Houston Law Center, the author had the occasion to meet Yale Rosenberg. It was clear from their discussion that Professor Rosenberg had a strong interest in Jewish law as well as a strong knowledge base. They discussed teaching such a course at the University of Houston Law Center. Professor Rosenberg was doubtful about teaching a course in Jewish law at a secular law school, particularly one in Texas. But that conversation began a series of conversations where Yale explored in some depth the course that we …