Law Commons^™

Basic Themes For Regulatory Takings Litigation, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

There is probably no area of law that is as fraught with confusion and inconsistencies as the regulatory takings doctrine. In this Article, Professor Byrne summarizes arguments, called "litigation themes," that can be made to help circumnavigate the many pitfalls and quagmires that await takings liti-gators as a result of this confusion. The Article argues that the Fifth Amend-ment's Takings Clause was never meant to apply to the regulation of property, but only to physical or legal appropriations. Professor Byrne suggests that the Due Process Clauses or the Equal Protection Clause are equally capable of resolving the conflicts that result …

Is Progressive Constitutionalism Possible?, Robin West

Georgetown Law Faculty Publications and Other Works

Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to …

[Review Of] George Kaufman, The Lawyer’S Guide To Balancing Life And Work: Taking The Stress Out Of Success, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

In recent years there has been much self-examination within the legal profession. On the macro scale, Sol Linowitz, The Betrayed Profession, compares, not favorably, the profession of today with that which he knew in the early decades of his practice. Dean Anthony Kronman, The Lost Lawyer, and Mary Ann Glendon, A Nation Under Lawyers, use their skills as scholars to examine the profession on a more objective level. On the micro level, Deborah Arron led the way with Running from the Law, which tells of talented overachievers who stood out in law school and judicial clerkships, and then found large-firm …

Hanging With The Wrong Crowd: Of Gangs, Terrorists, And The Right Of Association, David Cole

Georgetown Law Faculty Publications and Other Works

Part I will sketch the current contours of the right of association, a right limited to "expressive" and "intimate" association, and will describe the government's attempts to extend this categorical approach by limiting associational protection still further to membership per se. Part II will argue that the Court's limitation of associational rights to expressive and intimate associations and the government's attempt to distinguish association from conduct are unworkable, inconsistent with the Court's own precedents, and fail to reflect the normative reasons for protecting the right of association. Part III will offer an alternative framework for addressing the right of association, …

International Economic Sanctions: Improving The Haphazard U.S. Legal Regime, Barry E. Carter

Georgetown Law Faculty Publications and Other Works

The United States has resorted increasingly to economic sanctions as a major tool in its foreign policy. Recent targets include Panama, South Africa, Nicaragua, Libya, the Soviet Union, Poland, and Iran. These sanctions encompass controls on government programs (such as foreign aid), US. exports, imports, private financial transactions, and assistance by international financial institutions.

In this Article, Professor Carter demonstrates that the present US. legal regime governing the use of sanctions for foreign policy reasons is haphazard and in need of reform. Current US. laws provide the President with nearly unfettered authority to cut off government programs and exports, but …

Tax Metamorphosis, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

My favorite course ever, fourth-year high school Latin, was also the most demanding. We translated all twelve books of Virgils epic poem, The _Eneid, line by dactylic hexameter line, and large chunks of Ovids Metamorphoses besides. The course was valuable in many ways, not least of which was that only my youthful reading of Ovid's Metamorphoses later enabled me to make sense of the U.S. Tax Court's otherwise inscrutable decision in Edwards v. Commissioner.

Federalism, Welfare Reform And The Minority Poor: Accounting For The Tyranny Of State Majorities, Sheryll D. Cashin

Georgetown Law Faculty Publications and Other Works

The ideals of federalism contributed significantly to the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which repealed the AFDC entitlement program and devolved broad authority to the states to design and administer programs for welfare reform. Professor Cashin challenges the federalist, a priori assumption that states are the natural situs of policy authority concerning the poor. She argues that the Act is likely to yield harmful consequences for the poor-especially the minority poor-because the political economy of state decisionmaking is more hostile to redistributive aims than is that of national decisionmaking.

The Article tests the …

Effective Intervention In Domestic Violence Cases: Rethinking The Roles Of Prosecutors, Judges, And The Court System, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

Despite over two decades of reform, fundamental failures persist in the justice system's response to domestic violence. Society now widely accepts elimination of intrafamily abuse as a crucial goal, and it has been illegal in most states since the late nineteenth century. But the problem remains one of epidemic proportions. As documented in Part I of this Article, battering by husbands, ex-husbands, or lovers is the single largest cause of injury to women in the United States, and accounts for approximately thirty percent of all murders of women. Physical aggression occurs in at least one out of four marriages, and …

Rawls’ Political Constructivism As A Judicial Heuristic: A Response To Professor Allen, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

In her Dunwody Lecture, Professor Anita Allen insightfully calls our attention to the social contract tropes that pepper American case law. She claims that these tropes function ideologically, disguising politics, biases, and raw power in judicial decision-making. To examine this claim, I distinguish two versions of social contract theory Professor Allen groups together. Metaphors drawn from classical social contract theory-epitomized by the work of John Locke and Jean-Jacques Rousseau may well function as Professor Allen suspects. Tools taken from twentieth century neo-Kantian social contract theory-inaugurated and developed by John Rawls-could have precisely the opposite effect. Rawlsian social contract theory might …

Beyond The Model Rules: The Place Of Examples In Legal Ethics, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

The Model Rules of Professional Conduct defined the agenda for the post- Watergate renaissance in legal ethics. While there had been some form of codified precepts for American lawyers since at least 1908, Watergate inspired a desire to clean up a disgraced profession. The American Bar Association (ABA) promulgated the Model Rules; law schools instituted mandatory courses; and scholars debated and analyzed the new Model Rules. The organized bar devoted much time and attention to developing these guidelines. The mainstream media covered both the bar's original efforts and the subsequent adoption of the Model Rules by particular jurisdictions. Today, forty-three …

The Warren Court And The Concept Of A Right, David Luban

Georgetown Law Faculty Publications and Other Works

The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid- 1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not …

Faculty Pro Bono And The Question Of Identity, David Luban

Georgetown Law Faculty Publications and Other Works

My aim in this essay is to explain and defend a simple proposition, which I'll call the pro bono thesis: law teachers and law schools have the same pro bono responsibilities as lawyers and law firms. By "pro bono" I mean something more particular than community service or civic involvement. I mean free or reduced-rate legal work for those who cannot afford to pay for it. The pro bono thesis is that law teachers and law schools have pro bono responsibilities in this sense.

Asking The Right Questions, David Luban

Georgetown Law Faculty Publications and Other Works

At this Symposium, we have heard about forms of law practice that raise large questions about the lawyer's role. My sole theme in the present essay is that we often ask the wrong large questions. Too often, the questions about multidisciplinary practice ("MDP"), mediation and arbitration, and in-house lawyering are whether they are good for lawyers and good for clients. These are questions, I will suggest, that the market itself will decide. The right question is not whether new roles with no rules are good for lawyers and clients, but rather whether they are good for the rest of us-"us" …

Taking Problem Solving Pedagogy Seriously: A Response To The Attorney General, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Attorney General Janet Reno has taken seriously the notion that lawyers should make the world better than they find it, that problems should be prevented, where possible, before they occur, and that law should serve the needs of the people and deliver long-term justice. I want to suggest some concrete ways in which we can take her challenges seriously.

Do The Haves Come Out Ahead In Alternative Justice Systems? Repeat Players In Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Marc Galanter's essay, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change (Why the "Haves" Come out Ahead), published twenty-five years ago, set an important agenda for those who care about the distributive effects of legal processes, including those of us who have been engaged in jurisprudential, intellectual, and empirical debates about the relative advantages and disadvantages of alternative and conventional legal procedures. As a document of legal intellectual history, this Article was formed in the crucible of the Legal Mobilization and Modernization program at Yale Law School that spawned so many "law and . …

The Zealous Advocacy Of Justice In A Less Than Ideal Legal World, Robin West

Georgetown Law Faculty Publications and Other Works

In The Practice of Justice, William Simon addresses a widely recognized dilemma -- the moral degradation of the legal profession that seems to be the unpleasant by-product of an adversarial system of resolving disputes -- with a bold claim: Lawyers involved in either the representation of private rights or the public interest should be zealous advocates of justice, rather than their clients' interests. If lawyers were to do what this reorientation of their basic identity would dictate -- that is, if lawyers were to zealously pursue justice according to law, rather than zealously pursue through all marginally lawful means whatever …

Liberalism And Abortion, Robin West

Georgetown Law Faculty Publications and Other Works

First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves. Her argument is complicated and subtle, but its basic thrust can be readily …

Ex Post Facto Payments In Legally-Aided Criminal Cases In The Old Bailey, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

A much more pervasive scheme for overseeing the reasonableness of fees charged by legal professionals exists in England than in the United States. In England, for example, with or without a specific agreement over the fee, the client can challenge the solicitor's charges, and the court or the Law Society will assess their reasonableness.' Similarly, as part of assigning costs to the losing party, the reasonableness of the winning solicitor's claim for fees is evaluated. The lay client can even dispute the reasonableness of the barrister's fee after the fact.

In the United States, by contrast, lawyers hammer out agreements …

Representing Indigents In Serious Criminal Cases In England's Crown Court: The Advocates' Performance And Incentives, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

While indigent defendants charged with serious criminal offenses can be represented by lawyers in the United States and by barristers and solicitors in England and Wales. Gauging the quality of that help is an important but elusive inquiry. This article has two purposes: to map how the indigent criminal defendant charged with very serious offenses is represented in England's Crown Court, and to examine whether economic incentives can induce the defendant's representatives to perform as expected.

While barristers profess to be skilled advocates, and while many lawyers have likewise extolled the barrister's advocacy, testing the point is extremely difficult. Apart …

Laughing At Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article responds to two articles by Professor John Yoo appearing in the same volume. Professor Yoo maintains that treaties, either categorically or presumptively, have the same status in the United States as in the United Kingdom, where they lack the force of domestic law, and hence are not judicially enforceable, until implemented by statute. This response argues that Yoo's thesis contradicts the text of the Constitution, which declares treaties to be the 'law of the land.' The response notes, further, that Professor Yoo's reliance on the ratification debates to read the Supremacy Clause's reference to treaties out of the …

An Originalism For Nonoriginalists, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The received wisdom among law professors is that originalism is dead, having been defeated in intellectual combat sometime in the eighties. According to this story, Edwin Meese and Robert Bork proposed that the Constitution be interpreted according to the original intentions of its framers. Their view was trounced by many academic critics, perhaps most notably by Paul Brest in his widely-cited 1980 Boston University Law Review article, The Misconceived Quest for Original Understanding, and by H. Jefferson Powell in his 1985 Harvard Law Review article, The Original Understanding of Original Intent. Taken together, these and other articles represent …

The Richness Of Contract Theory, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Richness of Contract Law: An Analysis and Critique of Conemporary Theories of Contract Law by Robert A. Hillman (1997).

Throughout the book, Hillman offers a number of useful insights about various issues of contract law and theory--as he has in his numerous law review articles--but in this review the author is concerned with his overall theme: a general skepticism about "unifying" or "highly abstract" contract theories that fail to mirror the richness of contract law. In this regard, Hillman stands in the "realist" tradition of the previous generation of contracts scholars. Hillman attempts …

The Richness Of Contract Theory, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Taking Fiction Seriously: The Strange Results Of Public Officials' Individual Liability Under Bivens, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

This article argues that the Supreme Court's decision to place liability on federal officials in their personal capacity--what Professors Fallon and Meltzer call Bivens's "genius"--is in fact its Achilles' heel. Individual liability under Bivens has become fictional because it is the government, and not the individual personally, that is in fact liable in Bivens cases. The individual liability fiction has ended up helping the federal government more than the Bivens plaintiff in various ways, and has contributed to the low rate of recovery under Bivens.

It may seem odd to attribute the low rate of Bivens recoveries to the individual …

Affirmative Action And Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The contemporary debate about race in the United States is perplexing. Each side seems genuinely to feel distressed at the demands being made by the other. Racial minorities point to Dred Scott's insistence on racial castes, Plessy's endorsement of official segregation, and Brown's reluctance to remedy unlawful discrimination as evidence that the white majority is inevitably inclined to advance its own interests at minority expense. Minority group members, therefore, tend to argue that the only way to arrest this majoritarian inclination is through the use of race-conscious remedial programs that will ensure an equitable distribution of resources. Most members of …

Redefining The State's Response To Domestic Violence: Past Victories And Future Challenges, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

What role should the state play in the fight against domestic violence? Although most activists in the early domestic abuse movement viewed government institutions with a robust dose of suspicion, over time they began to look to the state for substantial assistance. During this period-the late sixties and seventies-increased hope for a positive governmental role appeared to be well-founded. The civil rights, feminist, and labor movements had pushed the federal government into expanding civil liberty guarantees and economic protections. Laws were enacted prohibiting sex- and race-based discrimination, health care got a strong boost through the creation of Medicaid and Medicare, …

Limiting Secret Settlements By Law, David Luban

Georgetown Law Faculty Publications and Other Works

I'm in the most embarrassing, impossible situation for a commentator- namely, agreeing fundamentally with what the principal speaker said. In fact, I wrote an article against secret settlements in the GEORGETOWN LAW JOURNAL in 1995. If Monroe Freedman were here, he would explain to us that progress in ideas comes from contention and the testing of hypotheses by marshalling the strongest arguments against them. Since he's not, I will nevertheless take that as my charge. Despite the fact that I agree with Richard on the ethical drawbacks of secret settlements, I'd like to begin by talking about what I think …

Contrived Ignorance, David Luban

Georgetown Law Faculty Publications and Other Works

Lawyers often complain that it's hard to get clients to tell them the unvarnished truth. But it can be an equal challenge to avoid facts that the lawyer really doesn't want to know. Criminal defense lawyers rarely ask their clients, "Did you do it?" Instead, they ask the client what evidence he thinks the police or prosecution have against him-whom he spoke with, who the witnesses are, what documents or physical evidence he knows about. If the client seems too eager to spill his guts, the lawyer will quickly cut him off, admonishing him that time is short and that …

Breard, Printz, And The Treaty Power, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article considers whether the anti-commandeering principle of New York v. United States and Printz v. United States applies to exercises of the Treaty Power. It illustrates the problem with an analysis of the treaty provision involved in Breard v. Greene, 118 S. Ct. 1352 (1998), which requires state officials to notify certain aliens they arrest that they have a right to consult with their consul. Whether exercises of the treaty power are subject to the commandeering prohibition depends on the resolution of two ambiguities in the Supreme Court's anti-commandeering doctrine. The first concerns the distinction between commandeering and …

Dignity And Discrimination: Toward A Pluralistic Understanding Of Workplace Harassment, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Part I of this article briefly examines some of the drawbacks and inconsistencies of Title VII sexual harassment jurisprudence and shows that Title VII does not provide an adequate framework for understanding many common forms of workplace harassment. Title VII is unquestionably a critical means of fighting against workplace discrimination; however, by emphasizing discrimination at the expense of dignity, the Title VII workplace harassment paradigm provides an incomplete understanding of the wrongs of workplace harassment.

Part II of this article asserts the importance of an approach to sexual harassment that distinguishes between the nature of the harm of workplace sexual …