Law Commons^™

Out Of The Ordinary: Law, Power, Culture, And The Commonplace, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

Review of The Common Place of Law: Stories From Everyday Life by Patricia Ewick & Susan S. Silbey (1998).

Sometimes a work's intellectual influences reveal both its strengths and its shortcomings. This is certainly the case with Patricia Ewick and Susan Silbey's The Common Place of Law: Stories From Everyday Life, and its indebtedness to the thinking of Michel Foucault and Michel de Certeau. Taken together, Foucault and de Certeau's work suggests that investigations of law's power are most fruitful not at the level of legal institutions and the state but at the level of lived experience, where we …

Poverty And Welfare Policy In The Post-Clinton Era, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

This is an important time to talk about people in need. There have been major changes recently in public policy toward those in need, and we have seen enough of their effect to be able to discuss the next steps. We have a new President and Congress. A recession is looking more probable by the day. And the 1996 welfare law is coming up for reauthorization in 2002. So this is a good time to look at how we are doing and what we need to do.

Cook V. Gralike: Easy Cases And Structural Reasoning, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

In Cook v Gralike, the Court - unanimous as to result - struck down a Missouri initiative amending the state constitution to require that the failure of candidates for U.S. Congress to support a particular term-limits amendment to the United States Constitution be noted on the ballot. In an opinion joined by seven Justices, the Court held that the Missouri law exceeded the scope of states' powers to regulate the "time, place and manner" of holding congressional elections . . . The opinions are analyzed preliminarily in Part I. Part II below suggests that even if there were no Elections …

Fair Use Infrastructure For Rights Management Systems, Dan L. Burk, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In this paper, we consider whether rights management systems can be supported by legal and institutional infrastructures that enable appropriate public access to the works secured by these technologies. We focus primarily on the design challenges posed by the fair use doctrine, which historically has played a central role in preserving such access. Throughout the paper, however, we also use the term "fair use" to refer more generally to the variety of limiting doctrines within copyright law that serve this goal. We begin in Part II by reviewing the contours of the fair use doctrine and the legal and policy …

Civil Rights In The New Decade: The Geography Of Opportunity, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

It is truly an honor and a privilege to have been invited to return to my home state of Alabama to talk about the civil rights agenda in the new decade. Lest you think that I lack the appropriate credentials to speak on this issue, I will tell you that I did go to jail for the cause. At the age of four months, I was taken by my mother, Joan Carpenter Cashin, to a sit-in at a lunch counter in Huntsville, Alabama. When my mother was arrested, she insisted on taking me with her to jail. I am very …

Can You Be A Good Person And A Good Prosecutor?, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Somehow, it is understood that prosecutors have the high ground. Most people simply assume that prosecutors are the good guys, wear the white hats, and are on the "right" side. Most law students contemplating a career in criminal law seem to think this. It could be that most practicing lawyers think this, as well.

Prosecutors represent the people, the state, the government. This is very noble, important, and heady stuff. Prosecutors seek truth, justice, and the American way. They are the ones who stand up for the victims and would-be victims, the bullied and battered and burgled. They protect all …

Analysis Of Foreclosure In The Ec Guidelines On Vertical Restraints, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The antitrust treatment of vertical restraints is quite controversial. In the United States, for example, warring vertical restraints guidelines were issued by the Department of Justice and National Association of Attorneys General, a group of antitrust enforcers from the individual states. However, a consensus was never achieved and these guidelines never entered the mainstream. Compare them to the U.S. Horizontal Merger Guidelines, which have become a template for evaluation of horizontal restraints.

The new EC Guidelines on Vertical Restraints Guidelines ("GVRs") represent a significant effort to create and implement a consistent analytic framework for evaluating vertical restraints. The scope of …

What's So Bad About Bush V. Gore? An Essay On Our Unsettled Election, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

There is a chance that Bush v. Gore may begin a process of laying a more attractive and realistic foundation for constitutionalism than the Official Story provides. The very fact that the Court is not politically independent and that it could not settle the matter in a disinterested, apolitical fashion might set us down a path toward a more mature version of constitutional law. The politically tendentious character of the Coon's reasoning demonstrates that our core constitutional commitments are subject to political manipulation. Ironically, public understanding of this malleability makes our politics more, rather than less, inclusive. It does so …

Criminal Law In Cyberspace, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Two of the most talked-about crimes of the year, the ILoveYou computer worm and the denial of service attacks on Yahoo, eBay, and ETrade, suggest that a new form of crime is emerging: cybercrime. Thousands of these crimes occur each year, and the results are often catastrophic; in terms of economic damage, the ILoveYou worm may have been the most devastating crime in history, causing more than $11 billion in losses.

This paper asks how cybercrime is best deterred. It identifies five constraints on crime - legal sanctions, monetary perpetration cost, social norms, architecture, and physical risks - and explains …

The Federal Income-Contingent Repayment Option For Law Student Loans, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

Many idealistic law school graduates feel precluded from taking legal aid and other low-paying public service jobs because they have incurred high educational debt, often exceeding $100,000. In 1993, however, Congress created an "income-contingent" debt repayment option that was intended to enable high-debt, low-income graduates, including lawyers, to afford accepting public service positions. This program caps loan repayments at a reasonable percentage of the graduates' incomes, and it forgives any remaining balance at the end of twenty-five years. To date, this program has failed to meet the needs of public interest lawyers. It is rarely used. Law students are largely …

Reconstructing The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to …

Hester Prynne, Lydia Bennet, And Section 306 Stock: The Concept Of Tainting In The American Novel, The British Novel, And The Internal Revenue Code, Stephen B. Cohen, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

Did Nathaniel Hawthorne's novel, The Scarlet Letter, inspire Section 306 of the Internal Revenue Code? This code provision adopts a peculiarly Hawthorne-like solution to a tax avoidance scheme known as the "preferred stock bailout." Section 306 taints the stock used in the scheme as "Section 306 stock." Special rules then govern all subsequent dispositions of the tainted stock. With its concept of a taint that can dog a stock from acquisition to disposition, Section 306 might have been designed by a novelist rather than a tax technician.

Patent Scope And Innovation In The Software Industry, Julie E. Cohen, Mark A. Lemley

Georgetown Law Faculty Publications and Other Works

Software patents have received a great deal of attention in the academic literature. Unfortunately, most of that attention has been devoted to the problem of whether software is or should be patentable subject matter. With roughly eighty thousand software patents already issued, and the Federal Circuit endorsing patentability without qualification, those questions are for the history books. The more pressing questions now concern the scope to be accorded software patents. In this Article, we examine the implications of some traditional patent law doctrines for innovation in the software industry. We argue that patent law needs some refinement if it is …

Accommodating The Public Sphere: Beyond The Market Model, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This Essay has two major components. First, in Parts I and II, I describe and critique the Court's opinion in Dale, beginning with an examination of the social origins of scouting, then proceeding to an analysis of Dale. Second, in Parts III and IV, I place the questions raised in Dale in another context in which they belong but are seldom analyzed, that of the jurisprudence of public accommodations laws . . . In conclusion, I join the two major themes by framing Dale's claim as the latest in a series of cases that have invoked an evolving understanding of …

Surrogacy From The Perspectives Of Economic And Civil Liberties, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The field of law and economics, of which Judge Posner is the leading theorist, has offered a rich and sophisticated framework for thinking about a wide variety of problems at the interface of law and society. The theory, based on economic principles for understanding behavioral incentives and disincentives, is widely taught in law schools and is influential in scholarship. I have not always agreed with the application of the theory to complex problems of individual and group behavior, yet I constantly have been impressed with the elegance of the writing and analysis.

Judge Posner thinks about surrogacy arrangements in terms …

Free Exercise Rights Of Capital Jurors, Brian Galle

Georgetown Law Faculty Publications and Other Works

The Supreme Court has said that the Constitution permits trial judges to exclude from the pool of potential capital trial jurors any persons whose views on the death penalty would likely substantially impair their ability to reach an impartial verdict. This Note argues that the Court's analysis to date is incomplete, in that it omits close evaluation of potential conflicts between such exclusions and the Free Exercise Clause. The Note argues further that a court should apply strict scrutiny to any state action, such as exclusion for cause, that burdens the use of religious beliefs in the mental processes of …

The Original Meaning Of The Commerce Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In …

Privatized Communities And The "Secession Of The Successful": Democracy And Fairness Beyond The Gate, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

In this essay, I will reflect on how common interest developments, and their privatized spaces, are contributing to a broader phenomenon of civic secession, primarily by affluent property owners. In particular, I will analyze the way in which CIDs may affect electoral politics and the allocation of public resources by federal and state government. The chief threat of CIDs is that they exacerbate inequality in America while also exacerbating the challenges of governing. By giving the private property owner a formal context in which to feel justified in her view that she is "doing her part" simply by paying her …

And Now A Word About Secular Humanism, Spirituality, And The Practice Of Justice And Conflict Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The papers presented in this Dialogue raise very important and moving questions about the relationship of spirituality, moral values, and religion to the practice of law generally, and the practice of conflict resolution specifically. In this Commentary, I want to focus on two related questions: First, where do our moral values, spirituality, and sense of communion or connection come from? And second, how do values derived from various sources of secular humanism inform our practices? For some of us, organized religion is not the primary source of our commitment to the "moral" values that inform our legal and conflict resolution …

The Clean Air Act And The Constitution, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In the summer of 1997, the Environmental Protection Agency (EPA) strengthened the air quality standards for two air pollutants, particulate matter and ozone, based on mounting scientific evidence of the harmfulness of these pollutants at levels allowed by the existing standards. With respect to particulate matter (PM), the agency found that numerous epidemiological studies had established an association between PM levels and premature deaths in humans, especially in the elderly population. Indeed, one study on which the EPA relied had found that approximately 60,000 premature deaths in the United States alone could be attributed, annually, to particulate matter. The scientific …

Defending Courts: A Brief Rejoinder To Professors Fried And Rosenberg, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

Harvard Professors David Rosenberg and Charles Fried have presented a provocative, sweeping critique of the theoretical foundations of tort liability that leaves virtually no aspect of our current tort system untouched, or perhaps more accurately, unscathed. Their article throws down the gauntlet to defenders of traditional tort law. For instance, Rosenberg and Fried take aim at the jury system, arguing that ex post liability rules created by juries are inefficient and should be replaced, whenever possible, by ex ante liability rules set by legislative bodies. And they attack the idea that compensation plays a legitimate role in structuring our tort …

Evaluating Congressional Constitutional Interpretation: Some Criteria And Two Informal Case Studies, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

I begin this Essay by identifying some problems with conducting an empirical inquiry into Congress's performance in constitutional matters. I argue that there is actually only a small set of issues for which we have a reasonably clean record to evaluate. With the problems I have identified in the background, I then examine some aspects of Congress's performance in the impeachment of President William J. Clinton and, more briefly, some aspects of its response to a presidential military initiative taken without formal prior congressional endorsement. I conclude that Congress's performance in the impeachment, however flawed, was reasonably good, and that …

Lawyers For The Abused And Lawyers For The Accused: An Interfaith Marriage, Abbe Smith, Ilene Seidman

Georgetown Law Faculty Publications and Other Works

In this article, we will explore what unites lawyers for the abused and lawyers for the accused. In Part II, we will discuss our connection as poverty lawyers concerned about the dignity of individual clients. In Part III, we will discuss our shared commitment to the adversarial system, legal process, and access to justice. In Part IV, we will address the challenge of teaching students who represent victims or perpetrators to be zealous and devoted advocates - but also to care about social and legal injustice on both sides.

Calibrated Commitment: The Legal Treatment Of Marriage And Cohabitation, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

A couple of points are worth making at the outset of my argument. First, I speak in this Essay primarily about the extension of benefits to domestic partners, rather than the imposition of duties upon them. That is because this has been the focus of most of the debate about the legal treatment of married and unmarried couples. I readily acknowledge, however, that a fuller debate would consider not only when domestic partners should be given rights, but also when they should assume certain responsibilities. Indeed, as I will make clear, one reason for rejecting certain claims by unmarried couples …

Stability And Development In Canon Law And The Case Of "Definitive" Teaching, Ladislas M. Örsy

Georgetown Law Faculty Publications and Other Works

Stability is an essential quality of any good legal system because a community's laws are an expression of its identity, and there is no identity without permanency. Many times we hear in the United States that we are a country held together by our laws. Although the statement cannot be the full truth, it is obvious that if our laws ever lost their stability, the nation's identity would be imperiled. In a religious community where the source of its identity is in the common memory of a divine revelation, the demand for stability is even stronger. Fidelity to the "Word …

Legal Scholarship As A Vocation, David Luban

Georgetown Law Faculty Publications and Other Works

Law professors occupy a twin role as scholars and (most of them, at any rate) as lawyers. Deborah Rhode has pointed out, in her contribution to this symposium, that the lawyer role of the professor carries with it some frequently overlooked obligations, specifically the obligation to perform pro bono service. I agree with her, and have ventured similar arguments myself. Here I will address the more purely theoretical side of the legal scholar's vocation. The text I will take for my sermon is the famous speech on the scholar's role that Max Weber delivered to a student audience eighty years …

Race And Discretion In American Medicine, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The author’s focus in this article is on racial disparities in medical care provision--that is, on differences in the services that clinically similar patients receive when they present to the health care system. Racial disparities in health status, which is not greatly influenced (on a population-wide basis) by medical care, are beyond his scope here. Disparities in medical care access-potential patients' ability, financial and otherwise, to gain entry to the health care system in the first place, are also outside his focus. The author begins this article by putting the problem of racial disparities in medical care provision within the …

To Our Children's Children's Children: The Problems Of Intergenerational Ethics, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay serves as the introduction to the Loyola of Los Angeles Law Review's symposium on intergenerational justice. The importance of this topic cannot be overstated. Intergenerational ethics bears on questions of environmental policy, health policy, intellectual property law, international development policy, social security policy, telecommunications policy, and a variety of other issues.

Part II, Clarifying the Problems of Intergenerational Ethics, is a first sketch of the scope and nature of intergenerational justice, introducing a variety of cases and contexts in which issues of intergenerational ethics arise and distinguishing between the political and moral dimensions of these issues. Part …

The Market For Medical Ethics, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

At the core of Kenneth Arrow’s classic 1963 essay on medical uncertainty is a claim that has failed to carry the day among economists. This claim—that physician adherence to an anti-competitive ethic of fidelity to patients and suppression of pecuniary influences on clinical judgment pushes medical markets toward social optimality—has won Arrow near-iconic status among medical ethicists (and many physicians). Yet conventional wisdom among health economists, including several participants in this symposium, holds that this claim is either naïve or outdated. Health economists admire Arrow’s article for its path-breaking analysis of market failures resulting from information asymmetry, uncertainty, and moral …

Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal …