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Articles 31 - 60 of 81
Full-Text Articles in Law
The Making Of A Libertarian, Contrarian, Nonobservant, But Self-Identified Jew, Randy E. Barnett
The Making Of A Libertarian, Contrarian, Nonobservant, But Self-Identified Jew, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Many academics are unaware that I am Jewish, no doubt due, in part, to my last name as well as to my politics, Yet growing up as a Jew in Polish-Catholic Calumet City, Illinois and as a kid from Calumet City attending Temple in Hammond, Indiana made me quite conscious of the tyranny of the majority. This environment, together with the influence of my father, had a deep affect on my views of liberty, justice, individual rights, and the U.S. Constitution. In this brief essay, prepared for a symposium on “Judaism and Constitutional Law: People of the Book,” held at …
The New Refugees And The Old Treaty: Persecutors And Persecuted In The Twenty-First Century, Andrew I. Schoenholtz
The New Refugees And The Old Treaty: Persecutors And Persecuted In The Twenty-First Century, Andrew I. Schoenholtz
Georgetown Law Faculty Publications and Other Works
When the fledgling U.N. negotiated a treat to protect refugees after the Second World War, member states focused on Europe as well as on events causing forced migration that occurred prior to 1951. No one imagined that cross-border escape from persecution would become a global phenomenon and remain one more than sixty years later, or that this human rights treaty would be needed in the twenty-first century. In fact, as increased numbers of asylum seekers from developing countries reached the most developed regions of the world during the last thirty years, critics have questioned the merits of this treaty and …
Prison Abolition And Grounded Justice, Allegra M. Mcleod
Prison Abolition And Grounded Justice, Allegra M. Mcleod
Georgetown Law Faculty Publications and Other Works
This article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste. Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address—interpersonal violence, addiction, mental illness, and sexual abuse, among others. Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law—principally deterrence, incapacitation, rehabilitation, and …
Good Faith Discrimination, Girardeau A. Spann
Good Faith Discrimination, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
The Supreme Court's current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court's racial jurisprudence stem from the Court's willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination.
Community Lawyering: Introductory Thoughts On Theory And Practice, Michael R. Diamond
Community Lawyering: Introductory Thoughts On Theory And Practice, Michael R. Diamond
Georgetown Law Faculty Publications and Other Works
There are several fundamental questions that one might ask in seeking the meaning of the term "community lawyer." Albeit somewhat theoretical, the most basic questions involve delving into exactly what is meant by the term "community." For what, exactly, is the community-lawyer lawyering? Further, once a client has been identified, questions will arise about how the lawyer should relate to that client and about the role the lawyer ought to play in assisting the client to achieve its goals. There is a long and rich literature concerning the latter question but a fairly sparse body of legal writing on the …
The Social Value Of Academic Freedom Defended, J. Peter Byrne
The Social Value Of Academic Freedom Defended, J. Peter Byrne
Georgetown Law Faculty Publications and Other Works
This essay argues for the social value of academic freedom in law schools and in the university generally. It takes explicit issue with the arguments of Stanley Fish in Versions of Academic Freedom: From Professionalism to Revolution. The essay maintains that academic freedom is essential to a liberal society and deserving of constitutional protection because scholarship and teaching governed by disciplinary norms represents modernity's best secular effort at separating truth from falsehood.
The Dawn Of Social Intelligence (Socint), Laura K. Donohue
The Dawn Of Social Intelligence (Socint), Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
More information about citizens’ lives is recorded than ever before. Because the data is digitized, it can be accessed, analyzed, shared, and combined with other information to generate new knowledge. In a post-9/11 environment, the legal standards impeding access to such data have fallen. Simultaneously, the advent of global communications and cloud computing, along with network convergence, have expanded the scope of information available. The U.S. government has begun to collect and to analyze the associated data.
The result is the emergence of what can be termed “social intelligence” (SOCINT), which this Article defines as the collection of digital data …
Comment On Prof. Imwinkelried's "Formalism V. Pragmatism In Evidence: Reconsidering The Absolute Ban On The Use Of Extrinsic Evidence To Prove Impeaching Untruthful Acts That Have Not Resulted In Conviction": Just What Evidence Of Witness Misdeeds Does Federal Evidence Rule 608(B) Exclude?---Imwinkelried Vs. Rothstein, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
Prof. Edward Imwinkelried, one of the country’s most renowned Evidence scholars, in a recent article in this journal, perceptively identifies three specific examples of evidence of a witness’s prior unconvicted-for misconduct which he correctly believes should be admissible to impeach the witness’s credibility in the discretion of the trial judge:
1. Evidence of demonstrably false previous accusations of rape against the present defendant by the complaining witness in a rape prosecution (assuming the rape shield would not exclude) which the witness will not admit to during cross examination;
2. Documentary evidence proving an unrelated misdeed of a testifying witness clearly …
Antitrust, Competition Policy, And Inequality, Jonathan B. Baker, Steven C. Salop
Antitrust, Competition Policy, And Inequality, Jonathan B. Baker, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
Economic inequality recently has entered the political discourse in a highly visible way. This political impact is not a surprise. As the U.S. economy has begun to recover from the Great Recession since mid-2009, economic growth has effectively been appropriated by those already well off, leaving the median household less well off. The serious economic, political and moral issues raised by inequality can be addressed through a panoply of public policies including competition policy, the focus of this article. The article describes the channels through which market power contributes to inequality, and sets forth a range of possible antitrust policy …
Terrorism Trials In Article Iii Courts, Laura K. Donohue
Terrorism Trials In Article Iii Courts, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
Some individuals reject Article III courts as a forum for bringing terrorist suspects to justice on the grounds that the ordinary judicial system cannot handle such cases. As an empirical matter, this claim is simply false. Since 2001, myriad terrorism trials have progressed through the criminal system. The U.S. Department of Justice (DOJ) reports that between 2001 and 2010, there were 998 defendants indicted in terrorism prosecutions. Eighty-seven percent of the defendants were convicted on at least one charge. According to the Executive Office for the U.S. Attorneys, from FY 2004 to FY 2009, there were 3,010 terrorism prosecutions. It …
A Mask That Eats Into The Face: Images And The Right Of Publicity, Rebecca Tushnet
A Mask That Eats Into The Face: Images And The Right Of Publicity, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
In their eagerness to reward celebrities for the power of their “images,” and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment. The power of the visual image has allowed courts to create an inconsistent, overly expansive regime that would be easily understood as constitutionally unacceptable were the same rules applied to written words as to drawings and video games. The intersection of a conceptually unbounded right with a category of objects that courts do not handle well has created deep inconsistencies and biases in the treatment of visual …
Conceptualizing Student Practice For The 21st Century: Educational And Ethical Considerations In Modernizing The District Of Columbia Student Practice Rules, Wallace J. Mlyniec, Haley D. Etchison
Conceptualizing Student Practice For The 21st Century: Educational And Ethical Considerations In Modernizing The District Of Columbia Student Practice Rules, Wallace J. Mlyniec, Haley D. Etchison
Georgetown Law Faculty Publications and Other Works
This article traces the history of the amendment process. It provides a short history of student practice rules and then, using the student practice rule in effect in the District of Columbia prior to the 2014 amendments, describes the various components of those rules that courts and bars across the nation have implemented to assist courts, advance legal education, and preserve advocates’ ethical obligations to clients. It then describes some of the comments to the proposed amendments offered by the District of Columbia Bar and other D.C. lawyers during the public comment period and the modifications to the District of …
In Praise Of Ex Ante Regulation, Brian Galle
In Praise Of Ex Ante Regulation, Brian Galle
Georgetown Law Faculty Publications and Other Works
Timing is an important consideration in regulatory design. Corrective taxes are usually imposed before or contemporaneously with the harmful activity they are aimed at preventing, while tort awards are assessed ex post, in its aftermath. Patents and research grants both can encourage innovation, but patents pay off only after the invention is marketed. In a world of perfect information, fully rational actors, and complete credit or insurance markets, time would not matter. In the real world, though, the failure of one or more of these assumptions can change dramatically the impact of a regulatory option. For example, prior commentators have …
A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter
A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter
Georgetown Law Faculty Publications and Other Works
In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …
Human Rights Thinking And The Laws Of War, David Luban
Human Rights Thinking And The Laws Of War, David Luban
Georgetown Law Faculty Publications and Other Works
In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.”
Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is …
Arendt On The Crime Of Crimes, David Luban
Arendt On The Crime Of Crimes, David Luban
Georgetown Law Faculty Publications and Other Works
Genocide–-the intentional destruction of groups “as such”–-is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.
Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her …
Freedom Of The Church And Our Endangered Civil Rights: Exiting The Social Contract, Robin West
Freedom Of The Church And Our Endangered Civil Rights: Exiting The Social Contract, Robin West
Georgetown Law Faculty Publications and Other Works
In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some …
A Retrospective And Prospective Analysis Of The West African Ebola Virus Disease Epidemic: Robust National Health Systems At The Foundation And An Empowered Who At The Apex, Lawrence O. Gostin, Eric A. Friedman
A Retrospective And Prospective Analysis Of The West African Ebola Virus Disease Epidemic: Robust National Health Systems At The Foundation And An Empowered Who At The Apex, Lawrence O. Gostin, Eric A. Friedman
Georgetown Law Faculty Publications and Other Works
The West African Ebola epidemic is a pivotal moment for the global health system. Just as the depth of the crisis ultimately spurred an unprecedented response, the failures of leadership demand innovative reforms. This analysis offers a template for these reforms, responding to the profound harms posed by fragile national health systems, delays in the international response, deficient resource mobilization, ill-defined responsibilities, and insufficient coordination. The scope of the reforms must address the failures evident in the Ebola response, as well as entrenched weaknesses that enabled the epidemic to reach its heights, transforming the existing inchoate, organically developed global health …
Comment: The Doctrine Of Chances, Brides Of The Bath And A Reply To Sean Sullivan, Paul F. Rothstein
Comment: The Doctrine Of Chances, Brides Of The Bath And A Reply To Sean Sullivan, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
The ‘Doctrine of Chances’ is a doctrine of probability that purports to solve an apparent logical conundrum or contradiction in the law of Evidence.
It is the author's thesis in this article that the doctrine of chances—in any acceptable logical form including that described by Mr. Sullivan—does properly describe when this kind of ‘other wrongs’ evidence is relevant, and how probative it is, but that relevance and probative value where this kind of proof is offered does depend on propensity reasoning even under these theories even in the cases where they say it does not. He is not simply arguing …
Why Healthy Behavior Is The Hard Choice, Lawrence O. Gostin
Why Healthy Behavior Is The Hard Choice, Lawrence O. Gostin
Georgetown Law Faculty Publications and Other Works
Our society is structured to encourage unhealthy diets and physically inactive lifestyles, which are key risk factors for chronic diseases including diabetes, heart diseases, and cancers. We are bombarded with advertisements for hyperprocessed foods laden with saturated fat, salt, sugar, and refined carbohydrates, “low-fat” foods often contain high amounts of sugar and salt, and parks and recreation spaces are often inaccessible or unsafe.
Four simple ideas - taxes on unhealthy products, product reformulation, improving the informational environment, and increasing healthy food accessibility - could make healthy behaviors the “default” choice for most consumers. First, taxes on unhealthy products, such as …
Substitute Arguments In Constitutional Law, Louis Michael Seidman
Substitute Arguments In Constitutional Law, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.
The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez
The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign …
Hobby Lobby, Birth Control And Our Ongoing Cultural Wars: Pleasure And Desire In The Crossfires, Robin West
Hobby Lobby, Birth Control And Our Ongoing Cultural Wars: Pleasure And Desire In The Crossfires, Robin West
Georgetown Law Faculty Publications and Other Works
Both sides of the birth control debate agree that birth control artificially prevents or interrupts conception, allowing women to control their own fertility and allowing heterosexual men and women to enjoy unconstrained sexual liberty. However, the decision in Hobby Lobby omitted all discussion of this central function of birth control, and contained no mention of arguments for or against birth control that assume it.
This piece examines and criticizes the two major arguments opposing and supporting birth control on this understanding of its function and core social meaning: first the neo-natural lawyers’ argument against birth control advanced in a papal …
Coercing Pregnancy, A. Rachel Camp
Coercing Pregnancy, A. Rachel Camp
Georgetown Law Faculty Publications and Other Works
Intimate partners coerce thousands of women in the United States into pregnancy each year through manipulation, threats of violence, or acts that deliberately interfere with the use of, or access to, contraception or abortion. Although many of these pregnancies occur within the context of otherwise abusive relationships, for others, pregnancy serves as a trigger for intimate partner violence. Beyond violence preceding or resulting from pregnancy, women who experience coerced pregnancies often suffer other physical, financial and emotional harms. Despite its correlation to domestic violence, reproductive coercion fits imperfectly, if at all, within our existing laws designed to combat domestic violence …
Nuclear Arms Control By A Pen And A Phone: Effectuating The Comprehensive Test Ban Treaty Without Ratification, David A. Koplow
Nuclear Arms Control By A Pen And A Phone: Effectuating The Comprehensive Test Ban Treaty Without Ratification, David A. Koplow
Georgetown Law Faculty Publications and Other Works
This Article examines three crucial national security problems concerning the testing and proliferation of nuclear weapons, and offers three novel solutions. The three urgent problems are: (1) the fact that the Comprehensive Nuclear Test Ban Treaty (CTBT), the most important multilateral nuclear arms control agreement of the past forty years, may never enter into force; (2) the fact that without CTBT, the global non-Proliferation regime is in trouble, too, as the fragile consensus underpinning the world's efforts to restrict the spread of nuclear weapons threatens to unravel; and (3) the fact that the United States is peculiarly disabled, due to …
Free To Be You And Me? Copyright And Constraint, Rebecca Tushnet
Free To Be You And Me? Copyright And Constraint, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
Joseph P. Fishman’s Creating Around Copyright advances a provocative thesis: some restrictions on creativity can spur the development of additional creative solutions, and (some level of) copyright might be one of those restrictions. If Picasso was right that “forcing yourself to use restricted means is the sort of restraint that liberates invention,” then being forced by law to use restricted means might do the same thing, ultimately leading to more varied and thus more valuable works.
At the outset, it’s important to know the baseline against which we ought to evaluate Fishman’s claims. Most copyright restrictionists, of whom I count …
Cool Story: Country Of Origin Labeling And The First Amendment, Rebecca Tushnet
Cool Story: Country Of Origin Labeling And The First Amendment, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
Country of origin labeling (COOL) requirements have long been part of government regulation of commerce. While one might ordinarily think of mandatory COOL as part of trade policy--or even as a means of encouraging individual citizens to engage in country-specific buying that would be disallowed as protectionism if carried out by their governments -- the most robust legal challenges to mandatory COOL now come from the First Amendment, not from free trade principles. This reliance on free speech claims offers a stark example of the charismatic force of the First Amendment. Objections having little to do with free speech at …
Content, Purpose, Or Both?, Rebecca Tushnet
Content, Purpose, Or Both?, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
Most debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of …
What's The Harm Of Trademark Infringement?, Rebecca Tushnet
What's The Harm Of Trademark Infringement?, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
For decades, the concept of actionable trademark infringement has been expanding. Source confusion, reverse confusion, approval/affiliation confusion, initial interest confusion, post-sale confusion, endorsement confusion, and so on, all have won cases for plaintiffs. Whether or not the confusion cost the plaintiff any sales, or was in any way material to consumers, our concept of trademark infringement now encompasses it. These expansions occurred for reasons that seemed sufficient to courts at the time, when advocates offered theories about how all these kinds of confusion could cause harm to the trademark owner. Primarily, courts feared that non-competing uses would preclude trademark owners …
The Normative Authority Of The World Health Organization, Lawrence O. Gostin, Devi Sridhar, Daniel Hougendobler
The Normative Authority Of The World Health Organization, Lawrence O. Gostin, Devi Sridhar, Daniel Hougendobler
Georgetown Law Faculty Publications and Other Works
The World Health Organization (WHO) was born after the devastation of World War II, as a normative agency endowed with unprecedented constitutional powers. But even as it has achieved stunning successes, such as the eradication of smallpox, it has failed to live up to the exalted expectations of the postwar health and human rights movement e exemplified most recently by its inadequate response to the Ebola epidemic. Our aim is to offer innovative ideas for restoring the Organization to its leadership position by exercising its normative authority, even as it faces a crowded and often chaotic global health architecture. Before …