Law Commons^™

Hope And Betrayal On Death Row, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Sovereignty, Accountability, And The Wealth Fund Governance Conundrum, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Sovereign wealth funds – state-controlled transnational portfolio investment vehicles – began as an externally imposed category in search of a definition. SWFs from different countries had little in common and no particular desire to collaborate. But SWFs as a group implicated the triple challenge of securing cooperation between deficit and surplus states, designing a legal framework for global capital flows, and integrating state actors in the transnational marketplace. This Article describes how an apparently artificial grouping of investors, made salient by the historical and political circumstances of their host states in the mid-2000s, became a vehicle for addressing some of …

They Did Authorize Torture, But..., David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Hybrid Vigor: Mashups, Cyborgs, And Other Necessary Monsters, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Does remix matter? This brief comment addresses the critique of importance, arguing that remix culture as well as the popular/mass culture from which it springs are of vital importance to human flourishing, invoking Donna Haraway's concept of the cyborg to investigate the fluidity, dynamism, and monstrousness of remixes and remixers.

Educating Lawyers For The Global Economy: National Challenges, Carole Silver

Georgetown Law Faculty Publications and Other Works

This essay addresses the challenge of educating law students to work in an increasingly global context. For students enrolled in United States law school, insight into the ways in which globalization matters can be drawn from the structural approaches to globalization of US-based law firms. These firms pursue their international practices by integrating lawyers educated and licensed in the firm’s home country (the US) and in the host jurisdictions in which the firm has offices. As a result, the success of the firm in its international practice depends upon the ability of its lawyers to develop strong and effective cross-national …

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi Short, Michael W. Toffel

Georgetown Law Faculty Publications and Other Works

Using data from a sample of U.S. industrial facilities subject to the federal Clean Air Act from 1993 to 2003, this article theorizes and tests the conditions under which organizations’ symbolic commitments to self-regulate are particularly likely to result in improved compliance practices and outcomes. We argue that the legal environment, particularly as it is constructed by the enforcement activities of regulators, significantly influences the likelihood that organizations will effectively implement the self-regulatory commitments they symbolically adopt. We investigate how different enforcement tools can foster or undermine organizations’ normative motivations to self-regulate. We find that organizations are more likely to …

Governing Board Accountability: Competition, Regulation And Accreditation, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

This article examines the three primary ways in which the governing boards of American colleges and universities are held to account: (1) competition; (2) regulation, including state nonprofit corporation laws, tax laws, and licensing laws; and (3) accreditation. It begins by tracing how lay (meaning nonfaculty) governing boards became the dominant form of governance in American higher education. It argues that governing boards provide American institutions of higher education with an exceptional degree of autonomy from state control and that, together with the shared governance approach that gives faculties primary responsibility for academic matters, they have been a vital factor …

The National Individual Health Insurance Mandate: Ethics And The Constitution, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Within weeks, after signing the nation’s first comprehensive health insurance reform, twenty states filed lawsuits challenging the constitutionality of the Bill’s most politically charged feature—an individual purchase mandate. If anything, the tax penalty is too low compared with the cost of insurance, so it may not sufficiently incentivize healthy individuals. But it remains deeply controversial because it compels individuals to purchase coverage they choose not to have, raising the question whether Congress can lawfully and ethically require individuals to contract with, and transfer money to, a private party. To be sure, the individual mandate lacks a clear American precedent. (It …

To Be Muslim Or "Muslim-Looking" In America: A Comparative Exploration Of Racial And Religious Prejudice In The 21st Century, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This Essay begins with a confession. In taking implicit association tests ("IATs") designed to measure my unconscious attitude toward two particular demographic groups, I discovered that I, an African-American, harbored a "slight automatic preference" for Europeans over blacks and for "other people" over "Arab-Muslims." Both of these results were contrary to my professed or conscious assertions of neutrality. Why would a pro-integration scholar who seeks to promote cross-racial understanding and inclusion exhibit such implicit biases? And why is it that a majority of others who take these tests register similar implicit biases? The point of my confession is to underscore …

The Case For Social Rights, Virginia Mantouvalou

Georgetown Law Faculty Publications and Other Works

This is part of the book Debating Social Rights (Oxford, Hart Publishing, 2010) where I am making the case for social rights and Professor Conor Gearty (LSE) is making the case against social rights. This paper argues that social and economic rights, defined as rights to the satisfaction of basic needs, are constitutional essentials at domestic level and claims of the highest priority at supranational level. Their inadequate legal protection in national and supranational orders is not justified. Social rights have common foundations with civil and political rights, but have been neglected in law because of Cold War ideologies. The …

The Misuse Of Textualism: A Further Reply To Prof. Kahn, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

Because readers have already endured four articles, two by me and two by Prof. Douglas A. Kahn, debating the meaning of section 67(e)(1), I am reluctant to respond to Prof. Kahn’s rejoinder, which appeared in the January 18 issue of Tax Notes. Nevertheless, our disagreement implicates the judicial craft of two U.S. Supreme Court members, Chief Justice John Roberts and Justice Sonia Sotomayor. I therefore feel it important to answer Prof. Kahn’s latest contentions, recognizing my duty to be as brief as possible.

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

Free Speech At What Cost?: Snyder V. Phelps And Speech-Based Tort Liability, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than …

Attention Must Be Paid: Commercial Speech, User-Generated Ads, And The Challenge Of Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, …

Commandeering The People: Why The Individual Health Insurance Mandate Is Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims.

First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of …

Implementing Public Health Regulations In Developing Countries: Lessons From The Oecd Countries, Lawrence O. Gostin, Emily A. Mok, Monica Das Gupta, Max Levin

Georgetown Law Faculty Publications and Other Works

The enforcement of public health standards is a common problem in many developing countries. Public health agencies lack sufficient resources and, too often, enforcement mechanisms rely on slow and erratic judicial systems. These limitations can make traditional public health regulations difficult to implement. In this article, we examine innovative approaches to the implementation of public health regulations that have emerged in recent years within OECD countries. These approaches aim to improve compliance with health standards, while reducing dependence on both the legal system and the administrative resources of public health agencies.

This article begins by discussing some traditional forms of …

Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …

Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

With the nomination of Elena Kagan to be a justice of the United States Supreme Court, it is quite possible that eight of the nine justices will have graduated from only two law schools—Harvard and Yale. This article frames this development in the historical context of the legal education of those justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently represented among …

The Perils Of Empowerment, Jane H. Aiken, Katherine Goldwasser

Georgetown Law Faculty Publications and Other Works

This Article examines bystander norms of disinterest and blame that inform and undermine strategies for dealing with significant social problems such as domestic violence. Current strategies rely on individual “empowerment” to reduce such violence. These strategies reflect fundamental misconceptions and false assumptions about the nature of domestic violence, about why this sort of violence persists so stubbornly, and, ultimately, about what it takes to change behavior that has long been tolerated, if not actually fostered, as a result of deeply imbedded social and cultural norms. The net effect is that far from empowering abused women, let alone reaching the norms …

Questioning Cultural Commons, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In Constructing Commons in the Cultural Environment, Michael J. Madison, Brett M. Frischmann, and Katherine J. Strandburg offer an innovative and attractive vision of the future of cultural and scientific knowledge through the construction of “cultural commons,” which they define as “environments for developing and distributing cultural and scientific knowledge through institutions that support pooling and sharing that knowledge in a managed way.” The kind of “commons” they have in mind is modeled on the complex arrangement of social norms that allocate lobstering rights among fishermen in Maine and extends to arrangements such as patent pools, open-source software development …

The Stories We Tell, And Have Told, About Tribal Sovereignty: Legal Fictions At Their Most Pernicious, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Starting with Chief Justice John Marshall and continuing through to the present Supreme Court, the story of Indian sovereignty has been consistent—it exists only in the most diminished form. Some reasons for this have been premised on the incapacity of Indians to self-govern; others on theories of federalism; while still others on the ambitions of non-Indians. However, the factual premises behind the concept of diminished sovereignty are baseless—legal fictions about the conquest of Indians and their nature. These fictions originated in Chief Justice Marshall’s Indian Law Trilogy and should have vanished long ago when their original purposes were fulfilled, like …

Supply Chains And Porous Boundaries: The Disaggregation Of Legal Services, Milton C. Regan, Palmer T. Heenan

Georgetown Law Faculty Publications and Other Works

The economic downturn has had significant effects on law firms, and is causing many of them to rethink some basic assumptions about how they operate. In important respects, however, the downturn has simply intensified the effects of some deeper trends that preceded it, which are likely to continue after any recovery that may occur.

This paper explores one of these trends, which is corporate client insistence that law firms “disaggregate” their services into discrete tasks that can be delegated to the least costly providers who can perform them. With advances in communications technology, there is increasing likelihood that some of …

Honor Killings And The Construction Of Gender In Arab Societies, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

This Article discusses the regulation and adjudication of honor killings in the Arab world and traces the distributive and disciplinary impact of such regulation/adjudication on Arab men and Arab women's sexuality. In the afterword, the Article outlines the transformative effect of Islamicization of culture in the Arab world in the past twenty years on the practice of honor and killings committed in its name.

Sovereignty, Integration And Tax Avoidance In The European Union: Striking The Proper Balance, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

As the need to raise revenue becomes more pressing and public opposition to tax avoidance increases, the European Court of Justice has made it more difficult for the twenty-seven Member States of the European Union to prevent tax avoidance and shape fiscal policy. This article introduces the new anti-avoidance doctrine of the European Court of Justice and analyzes it from the perspective of taxpayers, Member States and the European Union legal order as a whole. This doctrine is problematic becasue it has created a legislative vacuum in Europe. No European Union institution has the authority to regulate direct taxation without …

On Being Accountable In A Kaleidoscopic World, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

In this lecture, the author explores the concept of accountability in the changing world in which international law operates, and to draw upon my own recent experience chairing the Inspection Panel at the World Bank. In doing so, I want especially to recognize the concerns of poor people and bring their plight into the discussion of accountability.

The world today differs sharply from that when the United Nations was formed, some 65 years ago. In that world, there were only 51 states, few international organizations, a nascent global civil society, only 2 billion people, many of whom lived under colonialism …

Following Only Some Of The Money In Russia, Ethan S. Burger

Georgetown Law Faculty Publications and Other Works

Russia adopted the necessary legislation so that it was accepted as a member of the Financial Action Task Force (FATF). It is a member of the UN Convention Against Corruption (although it refuses to enact legislation consistent with the obligations under the OECD Anti-Bribery Convention) and fought to prevent an effective mechanism to monitor compliance with the UN Convention. Russia has created state bodies to combat money laundering. Nonetheless, the Russian Federal Financial Monitoring Service appears to be highly selective in the matters it pursues and appears to lack adequate personnel and material resources.

International Assistance And Cooperation For Access To Essential Medicines, Emily A. Mok

Georgetown Law Faculty Publications and Other Works

Access to essential medicines is a critical problem that plagues many developing countries. With a daunting number of domestic constraints technologically, economically, and otherwise developing countries are faced with a steep uphill battle to meet the human rights obligation of providing essential medicines immediately. To meet these challenges, the international human rights obligations of international assistance and cooperation can play a key role to help developing countries fulfill the need for access to essential medicines. This article seeks to highlight and expand upon the current understanding of international assistance and cooperation for access to essential medicines through a review of …

Introduction To The Symposium Issue Sexuality And Gender Law: The Difference A Field Makes, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

For a very long time, issues of sexuality and gender remained outside the boundaries of what was considered important legal scholarship. Indeed, the very presence in the legal academy of the concepts of sexuality and gender was viewed as barely legitimate, certainly not respectable, and, in intellectual terms, at best facetious-or, to let Justice White rest in peace, at best frivolous.

One result of this now dying worldview was a series of categorical exclusions and erasures-exemplified by the exclusion of sexual speech from the First Amendment, the exclusion of nonreproductive kinship networks from the definition of family, the exclusion of …

Keep Charity Charitable, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article responds to recent claims, most prominently by Anup Malani, Eric Posner, and Todd Henderson, that much of the work of the charitable sector should be farmed out to for-profit firms. For-profit firms are said to be more efficient because they can offer high-powered incentives to cut costs. I argue, however, that because of the high costs of monitoring and the presence of externalities, low-powered incentives are preferable for firms that produce public goods, as most charities do. Further, allowing some for-profit firms to receive charitable subsidies would raise the cost of producing those goods in government or other …

Is Local Consumer Protection Law A Better Retributive Mechanism Than The Tax System, Brian Galle

Georgetown Law Faculty Publications and Other Works

As Judge Calabresi has argued, preemption decisions are, at their core, a choice about which tier of government should have policy-making authority. In prior work, Mark Seidenfeld and I argued that the choice of whether or not to preempt state law decisions should be based explicitly on "fiscal federalism" considerations. The economic discipline of fiscal federalism attempts to measure the welfare effects of situating a given policy either locally, nationally, or somewhere in between.