Law Commons^™

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

All Faculty Scholarship

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

Agenda: Drafting Model Laws On Indoor Pollution For Developing And Developed Nations, University Of Colorado Boulder. Center For Energy & Environmental Security, Colorado Natural Resources, Energy And Environmental Law Review

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

On July 12 and 13, 2012, experts convened at Colorado Law to demonstrate the extent to which a model law could help address the global problem of indoor air pollution from inefficient cook stoves. The air pollution that results from inefficiently burning biomass as fuel for cooking has serious health and climatic consequences. The workshop produced two sets of Model Laws and commentaries to help nations solve the problem, and the commentaries were published in the Colorado Natural Resources, Energy, and Environmental Law Review.

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

11 pages.

"This Essay introduces the framework for deliberation and legislative drafting undertaken at the workshop: Drafting Model Laws on Indoor Pollution for Developing and Developed Nations on July 12-13, 2012, in Boulder, Colorado. There are a number of fundamental premises upon which the workshop was based, and this Essay refers to the most salient among them."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 319 (2013).

Development And Dissemination Of Clean Cookstoves: A Model Law For Developed Countries, Scott Miller

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

21 pages.

"This model law was developed at a legislative drafting workshop on July 12-13, 2012, entitled Drafting Model Laws on Indoor Pollution for Developing and Developed Nations, which was sponsored by the Center for Energy & Environmental Security and the Colorado Natural Resources, Energy & Environmental Law Review at the University of Colorado Law School in Boulder, Colorado."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 355 (2013).

"Scott Miller ed."

Development And Dissemination Of Clean Cookstoves: A Model Law For Developing Countries, Lakshman Guruswamy Ed.

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

24 pages.

"This model law was developed at a legislative drafting workshop on July 12-13, 2012, entitled Drafting Model Laws on Indoor Pollution for Developing and Developed Nations, which was sponsored by the Center for Energy & Environmental Security and the Colorado Natural Resources, Energy & Environmental Law Review at the University of Colorado Law School in Boulder, Colorado." Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 331 (2013).

Tying The Knot: Determining The Legality Of Same-Sex Marriage And The Courts’ Responsibilities In Defining The Right, Eva Cerreta

Honors Scholar Theses

Ambiguous terms and phrases in the United States Bill of Rights have caused a great deal of controversy throughout United States history over what rights truly exist and which branch of government should be responsible for determining those rights. These questions are currently being debated in states throughout the country concerning the right to same-sex marriage. This thesis answers these questions of legality and responsibility concerning the right to same-sex marriage. The thesis uses case law of the doctrinal development of the Equal Protection Clause and the right to privacy to suggest that the Equal Protection Clause provides the soundest …

Theorizing American Freedom (Reviewing Aziz Rana, The Two Faces Of American Freedom (2010)), Anthony O'Rourke

Book Reviews

This is a review essay of The Two Faces of American Freedom, by Aziz Rana. The book presents a new and provocative account of the relationship between ideas of freedom and the constitutional structure of American power. Through the nineteenth century, Rana argues, America’s constitutional structure was shaped by a racially exclusionary, yet economically robust, concept that he calls “settler freedom.” Drawing on the burgeoning interdisciplinary field of settler colonial studies, as well as on the vast historical literature on civic republicanism, Rana contends that the concept of settler freedom necessitated a constitutional framework that enabled rapid territorial expansion and …

Is Emerging Adulthood Influencing Moffitt’S Developmental Taxonomy? Adding The “Prolonged” Adolescent Offender, Christopher Salvatore, Travis A. Taniguchi, Wayne Welsh

Department of Justice Studies Faculty Scholarship and Creative Works

The study of offender trajectories has been a prolific area of criminological research. However, few studies have incorporated the influence of emerging adulthood, a recently identified stage of the life course, on offending trajectories. The present study addressed this shortcoming by introducing the "prolonged adolescent" offender, a low-level offender between the ages of 18 and 25 that has failed to successfully transition into adult social roles. A theoretical background based on prior research in life-course criminology and emerging adulthood is presented. Using data from the National Longitudinal Study of Adolescent Health analyses examined the relationship between indicators of traditional turning …

The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …

Together Again, John Henry Schlegel

Journal Articles

No abstract provided.

How The "Unintended Consequences" Story Promotes Unjust Intent And Impact., Martha T. Mccluskey

Journal Articles

In the guise of critical analysis of the limits of law reform, the familiar phrase “unintended consequences” serves to rationalize rising inequality and to undermine democratic accountability. This paper examines how the phrase promotes a story of disentitlement, using the recent financial crisis as an example. By naturalizing inequality as power beyond law’s reach, this phrase’s message that benign law is likely to bring unequal consequences dovetails with a seemingly contradictory message that benign intent, rather than harmful impact, is what primarily counts for evaluating inequality.

As part of a LatCrit XV symposium taking a “bottom-up” view of the recent …

Faith And Fidelity: Originalism And The Possibility Of Constitutional Redemption, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Constitutional Redemption: Political Faith in an Unjust World by Jack Balkin (2011) and Living Originalism by Jack M. Balkin (2011).

Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: "Originalism remains even now a powerful vehicle for conservative mobilization. ..." "[L]iving constitutionalism...has been at the core of progressive constitutional thought since the 1970s." "[A]ny reasonably well-informed observer knows that the term 'living Constitution' encodes liberal sympathies, just as originalism encodes conservative ones. ..." "[O]riginalism cannot easily be appropriated to progressive constitutional arguments." …

Confucian Virtue Jurisprudence, Linghao Wang, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.

This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of …

Fidelity To Law And The Moral Pluralism Premise, Katherine R. Kruse

Scholarly Works

In Fidelity to Law, Wendel presents and defends a comprehensive theory of legal ethics with two interrelated arguments: a functional argument that law deserves respect because of its capacity to settle normative controversy in a morally pluralistic society; and a normative argument that law deserves respect because democratic lawmaking processes respect the equality and dignity of citizens. This review essay questions Wendel’s move from the premise of moral pluralism to his conclusion that the function of law is to settle normative controversy in society on both practical and theoretical grounds. Practically, it argues that law lacks the capacity to …

Introduction: Punishment And Culpability, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Will The Real Paul Robinson Please Stand Up? Robinson's Conflicting Criminal Code, Kimberly Kessler Ferzan

All Faculty Scholarship

No abstract provided.

Danger: The Ethics Of Preemptive Action, Larry Alexander, Kimberly Kessler Ferzan

All Faculty Scholarship

The law has developed principles for dealing with morally and legally responsible actors who act in ways that endanger others, the principles governing crime and punishment. And it has developed principles for dealing with the morally and legally nonresponsible but dangerous actors, the principles governing civil commitments. It has failed, however, to develop a cogent and justifiable set of principles for dealing with responsible actors who have not yet acted in ways that endanger, others but who are likely to do so in the future, those whom we label "responsible but dangerous" actors (RBDs). Indeed, as we argue, the criminal …

Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan

All Faculty Scholarship

The use of the term, "self-defense, " covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, "I am going to kill you," the aggressor's behavior forfeits the aggressor's right against the defender's infliction of harm that is intended to repel the aggressor's attack. Because the right is forfeited, numbers do not count (the …

What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen

All Faculty Scholarship

No abstract provided.

International Civil Litigation In U.S. Courts: Becoming A Paper Tiger?, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.