Law Commons^™

Health Care And The Illegal Immigrant, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The question of whether illegal immigrants should be entitled to some form of health coverage in the United States sits at the uneasy intersection of two contentious debates: health reform and immigration reform. Befitting this place, the rhetoric surrounding the issue has been exponentially heightened by the multiplying effects of combining two vitriolic debates. On one side, it is argued that the United States has a moral obligation to provide health care to all those within its borders needing such assistance. On the other, it is argued with equal force that those illegally present in this country should not be …

Of Wife And The Domestic Servant In The Arab World, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The author asserts to avoid common misunderstandings on the relevance of Sharia to modern women in the Arab World that a) Shari’s relevance to the lives of modern women in the Arab World has been largely confined to the area of family law, b) in the modern nation state Sharia has been codified, i.e., certain rules derived from Islamic jurisprudence on the family have been selected and passed as laws, each nation state having its own unique combination of such rules, c) the courts and the judges who adjudicate disputes on family law are either secular courts/judges, or judges trained …

Islam In The (Inter)National, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

Islam, Muslims, and Islamic law have become an intense American pre-occupation since September 11, 2001. Since then, much literature has been written in academia and public culture alike, deciphering the Muslim and the Islamic, bestsellers sold, careers made, and expertise claimed, solicited, and generously offered.

Unsurprisingly, another type of literature coincided with the rise of the literature on Islam and the Islamic, namely, the one on national security. Sometimes, this literature paralleled and intersected with that on the Islamic, with both fields claiming the same experts, though for the most part, the latter commanded its own independent list of bestsellers, …

The Supreme Constitutional Court Of Egypt: The Limits Of Liberal Political Science And Cls Analysis Of Law Elsewhere, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

On January 25th 2011, following a popular uprising, president Hosni Mubarak of Egypt was forced to relinquish power after thirty years of continuous rule. The popular uprising came to be known as the Egyptian revolution of January 25th marking the first time in the modern history of Egypt an authoritarian ruler is forced out of power through the mobilization of Egyptian masses. The popular mobilization came at the heels of several years of “wildcat” workers' strikes affecting various sectors of the economy, public and private, as well as recurring demonstrations spearheaded by the youth of the Egyptian middle class demanding …

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

Withdrawing From International Custom: Terrible Food, Small Portions, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘Yeah, I know; and such small portions.’” Similarly, while Bradley and Gulati attack international law’s current prohibition of unilateral withdrawal from custom, they propose an alternative that differs only modestly from it (small portions). At the same time, the doctrinal change they propose would take customary international law in the …

The Malaysian Legal System: A Tale Of Two Courts, Yvonne Tew

Georgetown Law Faculty Publications and Other Works

The Federal Constitution of Malaysia was crafted during the birth pangs of the nation in 1957 and provides the framework for Malaysia’s modern legal system. The Federation of Malaya emerged from British colonialism to achieve independence on 31 August 1957 and was joined six years later by the Borneo states – Sabah and Sarawak – and Singapore to form the new nation of Malaysia. Singapore left Malaysia in 1965 to become its own sovereign nation, and the current Federation of Malaysia comprises the Peninsula, Sabah, and Sarawak. Malaysia was born in a climate of multicultural compromise as a constitutional monarchy …

Customary International Law As U.S. Law: A Critique Of The Revisionist And Intermediate Positions And A Defense Of The Modern Position, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they …

The Limits Of National Security, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The United States’ National Security Strategy, issued in May 2010, articulates an expansion in U.S. interests that stems from the end of the Cold War. Departing from a policy of industrial growth and military containment in response to geopolitical threats, U.S. national security is now defined in terms of a wide range of potential risks that the country faces. The NSS is not alone in its rather expansive view—one that significantly departs from the perspective adopted at any point in U.S. history. It represents the fourth (and most concerning) epoch in the country’s evolution, and it is beginning to find …

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 …

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 …

Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.

The Perilous Dialogue, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in …

On Law And The Transition To Market: The Case Of Egypt, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

On the eve of independence from European colonialism, Egypt, like most other developing countries, undertook the project of de-linking itself from colonial economy by initiating domestic industrialization. The economic project known as Import Substitution Industrialization (“ISI”) was designed to liberate Egypt from raw commodity production--specifically, agricultural and mineral--servicing its previous colonial master, Great Britain. The engine of development would be an expanding public sector with nationalization and socialism as leitmotifs. In re-orienting the economy towards industrial production, Egypt hoped that the terms of trade with the international economy would significantly improve, thereby leading to an improvement in the living standards …

Reactions: Natsu Taylor Saito's 'Colonial Presumptions: The War On Terror And The Roots Of American Exceptionalism', Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

Is the word "civilization," evoked by Bush in contemporary times, the direct genealogical descendant of the mission civilatrice evoked by his Anglo Saxon predecessors to justify their onslaught on the native inhabitants of the land they have chosen to settle and appropriate? Is the contemporary project by the current political elites of the US to "spread democracy in the Middle East" the same as and co-equal with the mission to civilize the "beast" in the lands where "beasts" wandered two centuries ago? If the ethno/race of the old mission was Anglo Saxon, what is its contemporary ethnic/race today? Does the …

Is Law An Economic Contest? French Reactions To The Doing Business World Bank Reports And Economic Analysis Of The Law, Anne-Julie Kerhuel, Bénédicte Fauvarque-Cosson

Georgetown Law Faculty Publications and Other Works

The economic analysis of law has provoked strong reactions among French academics, in particular since 2004 when the first of the Doing Business reports was published. French jurists have joined forces to expose the methodological limits inherent to these reports, which rated France a long way behind other legal systems allegedly more able to facilitate business. In its first part, this article examines the various reactions to these reports, almost all of which were published in French only. In the second part, the focus is on the position of economic analysis in French law, its role, and, in particular, the …

Codes And Hypertext: The Intertextuality Of International And Comparative Law, Marylin J. Raisch

Georgetown Law Faculty Publications and Other Works

The field of information studies reveals gaps in the literature of international and comparative law as part of interdisciplinary and textual studies. To illustrate the kind of theoretical and text-based work that could be done, this essay provides an example of such a study. Religious law texts, civil law codes, treaties and constitutional texts may provide a means to reveal the nature of hypertext as the new format for commentary. Margins used to be used for commentary, and now this can be done with hypertext and links in footnotes. Scholarly communication in general is now intertextual, and texts derive value …

Guilty Pleas Or Trials: Which Does The Barrister Prefer?, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favor guilty pleas, it is not accurate with respect to barristers in England. This is because the latter’s selfish incentives--to maximize income and avoid sanction--incline them to prefer trials over guilty pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, …

Terrorism And Trial By Jury: The Vices And Virtues Of British And American Criminal Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

British tradition and the American Constitution guarantee trial by jury for serious crime. But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways. First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence. Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, …

Guilty Pleas And Barristers' Incentives: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of …

Domestic Violence In Ghana: The Open Secret, Nancy Chi Cantalupo, Lisa Vollendorf Martin, Kay Pak, Sue Shin

Georgetown Law Faculty Publications and Other Works

This report discusses the findings of a Georgetown Law International Women’s Human Rights Clinic fact-finding team that traveled to Ghana, Africa in March 2003 to investigate domestic violence. The report reviews the contours of the domestic violence problem in Ghana and outlines the ways in which Ghanaian law and procedure was insufficiently addressing the problem at the time. Its chief findings include that the Ghanaian laws existing in 2003 inadequately punished perpetrators and protected victims of domestic violence and that court and police enforcement of the existing law was lacking, including because the government was allowing the removal of domestic …

Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

As Judge Messitte's essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given …

Anglo-American Privacy And Surveillance, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The United States’ Terrorism Surveillance Program represents just one of many expansions in surveillance since 9/11, as legal controls previously introduced to protect citizens’ privacy and to prevent the misuse of surveillance powers have been relaxed. What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. The issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears …

"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Why might a court refer to non-U.S. law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S. law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. Rather, I mean that references to non-U.S. …

Anti-Terrorist Finance In The United Kingdom And United States, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

This article adopts a two-tiered approach: it provides a detailed, historical account of anti-terrorist finance initiatives in the United Kingdom and United States—two states driving global norms in this area. It then proceeds to a critique of these laws. The analysis assumes—and accepts—the goals of the two states in adopting these provisions. It questions how well the measures achieve their aim. Specifically, it highlights how the transfer of money laundering tools undermines the effectiveness of the states' counterterrorist efforts—flooding the systems with suspicious activity reports, driving money out of the regulated sector, and using inappropriate metrics to gauge success. This …

When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last "quality-control" …

Marbury V. Madison Around The World, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

To put the point somewhat strongly for emphasis, the U.S. system of judicial review is now something of an outlier among systems of constitutional review. In this Essay, I consider three aspects of such systems: the structures of review, the theories of review, and the forms of review. My aim is primarily one of description, aiming to highlight the ways in which the U.S. system resembles and differs from the newer systems of judicial review. The U.S. system of judicial review has close-and more distant-relatives in each of these categories. However, the U.S. system remains distinctive in that it combines …

Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular …

The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

The goal of this Article is to participate in the challenging project of carving out a new area of study in the place where international law, comparative law, and domestic law intersect. In this Article, I use the story of flawed rule-of-law assistance efforts to demonstrate the importance of this inquiry. I take as a basic premise that there are many situations in which it is justifiable and beneficial for the U.S. and other actors to seek to promote human rights and the rule of law abroad, and that at times even military interventions are a necessary and justifiable part …

New Forms Of Judicial Review And The Persistence Of Rights - And Democracy-Based Worries, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Recent developments in judicial review have raised the possibility that the debate over judicial supremacy versus legislative supremacy might be transformed into one about differing institutions to implement judicial review. Rather than posing judicial review against legislative supremacy, the terms of the debate might be over having institutions designed to exercise forms of judicial review that accommodate both legislative supremacy and judicial implementation of constitutional limits. After examining some of these institutional developments in Canada, South Africa, and Great Britain, this Article asks whether these accommodations, which attempt to pursue a middle course, have characteristic instabilities that will in the …