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Articles 1 - 30 of 91
Full-Text Articles in Law
Uncle Sam Is Watching You, David Cole
Uncle Sam Is Watching You, David Cole
Georgetown Law Faculty Publications and Other Works
No abstract provided.
Toward A New Constitutional Anatomy, Victoria Nourse
Toward A New Constitutional Anatomy, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In …
Arthur C. Helton 1949-2003, Andrew I. Schoenholtz
Arthur C. Helton 1949-2003, Andrew I. Schoenholtz
Georgetown Law Faculty Publications and Other Works
Through his advocacy, teaching and scholarship, Arthur Helton enabled some of the most vulnerable people on earth, as well as those who work to advance their rights, to ensure that governments strive to live up to their legal and moral obligations to protect and assist the displaced.
The Proper Scope Of The Police Power, Randy E. Barnett
The Proper Scope Of The Police Power, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this Article, I will contend that the Constitution is not really silent at all on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism-and its limits. These limits require that interpretation of original meaning be implemented by means …
Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet
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 …
Folktales Of International Justice, David Luban
Folktales Of International Justice, David Luban
Georgetown Law Faculty Publications and Other Works
When Laura Dickinson asked me to participate on this panel, she very nicely said that she hoped I could bring a different perspective to the discussion. I thought I knew what she meant. The other panelists share a profound knowledge of how international criminal-law institutions work. My "different perspective" would therefore be the perspective of abject ignorance.
Taking comfort from the Socratic dictum that there is wisdom in knowing what you do not know, I accepted the invitation because it gives me the opportunity to pose questions rather than proposing answers. I will raise my questions by examining some stories …
Constitutional Hardball, Mark V. Tushnet
Constitutional Hardball, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: …
A Profusion Of Chancery Reform, James Oldham
A Profusion Of Chancery Reform, James Oldham
Georgetown Law Faculty Publications and Other Works
The refrain that law and equity cannot peaceably cohabit the same court is familiar and persistent. In his 1790 treatise on contracts, Joseph Powell protested that blending law and equity was "subversive of first principles." He claimed, "That a right in itself purely legal cannot be the proper subject of discussion in a jurisdiction purely equitable, and that a right purely equitable, cannot be the proper subject of a purely legal jurisdiction, are axioms that cannot be denied," adding for good measure: "It is a proposition as self-evident as that black is not red, or white black." Almost two centuries …
Introduction: Fordham Sports Law Forum, William Michael Treanor
Introduction: Fordham Sports Law Forum, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
Introduction to the Fordham Sports Law Forum at Fordham University School of Law.
Since its founding in 1996, the Fordham Sports Law Forum has attracted numerous distinguished speakers to the school who have graciously shared their expertise and insight into the intersecting worlds of sports, law, and business. These participants have greatly enriched and invigorated the academic environment for many of your students and have made this venue one of the highlights of the academic year.
Rethinking Crime Legislation: History And Harshness, Victoria Nourse
Rethinking Crime Legislation: History And Harshness, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
There is a truth about the criminal law that scholars evade as much as they criticize: the criminal law is produced by legislators (rather than the experts). The author states she does not know of any way to make law in a democracy other than through the voters' representatives. And, yet, it is the standard pose of the criminal law scholar to denigrate legislatures and politicians as vindictive, hysterical, or stupid. All of these things may be true but name-calling is a poor substitute for analysis. As in constitutional law, so too in criminal law, it is time to put …
The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow
The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
In this paper I will explore the idea of a "neutral" lawyer who may have neither "client" (in the conventional sense of client) to represent nor advocacy to perform, yet still be functioning fully as a lawyer or "learned professional" schooled in the law. Indeed, in this paper I will suggest that lawyers may be especially useful in performing a variety of "new" functions that depart from traditional conceptions of the lawyer's role, but which lawyers may be especially well suited to perform. It may be counter-cultural to think of lawyers as "consensus builders," rather than as advocates or makers …
Left Out, Louis Michael Seidman
Left Out, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
My thesis is that the left's problem regarding criminal justice is at least partially of its own making. Specifically, the problem stems from deep contradictions in the left's positions. Progressives have not one position on crime, but at least seven different ones, and these positions cannot be reconciled. Most of this essay consists of a taxonomy of conflicting progressive views on criminal justice. Before I begin, however, I need to qualify my thesis in three important ways. First, as will become obvious, what I present below amounts to no more than brief descriptions - really evocations - of attitudes, arguments, …
Pari Passu And A Distressed Sovereign's Rational Choices, William W. Bratton
Pari Passu And A Distressed Sovereign's Rational Choices, William W. Bratton
Georgetown Law Faculty Publications and Other Works
Part I describes the disruptive role the pari passu clause plays in sovereign debt compositions, stating the case favoring the narrow reading. Part II reconsiders the economic incentives in play at the time lenders close loans to sovereigns, stating a case for the broad reading. Part III works the competing readings through the legal framework of bond contract interpretation. The exercise shows that the matter comes down to a choice between an ex ante reading, conducted as of the time the contract is executed and delivered, and an ex post reading, conducted as of the later time of distress. The …
Deliberate Extinction: Whether To Destroy The Last Smallpox Virus, David A. Koplow
Deliberate Extinction: Whether To Destroy The Last Smallpox Virus, David A. Koplow
Georgetown Law Faculty Publications and Other Works
The target problem to be examined is smallpox. Specifically, what should we (the United States and the entire world) now do with the last known residual samples of the virus that causes this uniquely horrific disease? The illness itself has virtually disappeared from the catalogue of human afflictions: due to a stunningly imaginative, concerted, and resolute campaign of the World Health Organization (WHO) through the 1970s, no one has contracted this deadly impairment for twenty-five years. Yet the causative element, an insidious scourge known as the variola virus, still remains, housed for now in high-security freezers at the U.S. Centers …
Getting Spending: How To Replace Clear Statement Rules With Clear Thinking About Conditional Grants Of Federal Funds, Brian Galle
Getting Spending: How To Replace Clear Statement Rules With Clear Thinking About Conditional Grants Of Federal Funds, Brian Galle
Georgetown Law Faculty Publications and Other Works
How much federalism is too much? The answer, of course, depends on whom you ask. It is no surprise, then, that in both judicial and academic debates about the proper balance between national and local power, the fiercest arguments have been fought not over "how much?" (perhaps an impossible question in any event) but "who?" Thus, for each key aspect of national power-for example, the scope of the Commerce and Treaty powers, the Tenth and Fourteenth Amendments, and Congress's ability to subject states to suits for damages by private individuals -- there is an accompanying literature considering who best to …
International Law Status Of Wto Dispute Settlement Reports: Obligation To Comply Or Option To "Buy Out"?, John H. Jackson
International Law Status Of Wto Dispute Settlement Reports: Obligation To Comply Or Option To "Buy Out"?, John H. Jackson
Georgetown Law Faculty Publications and Other Works
In four further parts of this comment, I undertake to fulfill my "obligation" to present a more thorough analysis. In part II, I briefly introduce some of the different elements that would go into normal treaty interpretation related to the issue in question, such as which text should be part of the analysis and whether "preparatory work" or intent of the parties, including statements by some nation-state governmental officials made contemporaneously with the drafting of the treaty, should be considered. Likewise, I mention the importance of the forty seven years of GATT practice to the interpretive process, and I note …
Marbury V. Madison Around The World, Mark V. Tushnet
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 …
Introduction: Rawls And The Law, William Michael Treanor
Introduction: Rawls And The Law, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
Professor John Rawls of Harvard University, who died in November of 2002, is widely regarded as the most important political philosopher of the twentieth century, and his influence on legal thought was particularly profound. There have been a number of conferences or symposia on Rawls's individual books, such as A Theory of Justice and Political Liberalism, but, astonishingly, until the symposium presented in this issue of the Fordham Law Review was held in November 2003, no symposium or conference had focused on the implications of his work for the law. Simply because of its subject, then, this symposium was of …
Domestic And External Debt: The Doomed Quest For Equal Treatment, Anna Gelpern, Brad Setser
Domestic And External Debt: The Doomed Quest For Equal Treatment, Anna Gelpern, Brad Setser
Georgetown Law Faculty Publications and Other Works
Until recently, governments borrowed from domestic residents and foreign investors using very different instruments. Residents bought "domestic debt" - paper denominated in local currency and governed by domestic law. Foreign investors preferred "external debt", which offered foreign currency and foreign law. Because there was virtually no overlap between resident and nonresident holdings, it mattered little that lawyers and economists defined domestic and external debt differently: lawyers focused on features such as governing law and jurisdiction, economists on the holder's residence and currency of denomination. The legal and economic definitions of domestic and external debt were effectively bundled: "domestic debt" meant …
Response To State Action And A New Birth Of Freedom, Robin West
Response To State Action And A New Birth Of Freedom, Robin West
Georgetown Law Faculty Publications and Other Works
I have just a few comments. The first comment is a contribution to the ''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not think it is sufficient-although it may well be necessary-to show that the "state action" problem is merely a pseudo-problem, whatever the reason for finding it not to be a problem. I do not agree with one of the claims put forward by Peller and Tushnet,' that Black's perceptive analysis of the state action problem in his …
Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet
Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …
Was The Right To Keep And Bear Arms Conditioned On Service In An Organized Militia?, Randy E. Barnett
Was The Right To Keep And Bear Arms Conditioned On Service In An Organized Militia?, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
This essay is a review of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent by H. Richard Uviller & William G. Merkel (2002).
Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With …
Procedural Justice, Lawrence B. Solum
Procedural Justice, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
This article begins in part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?
The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question--what is procedure?--is the most difficult and requires an extensive …
Upending Status: A Comment On Switching, Inequality, And The Idea Of The Reasonable Person, Victoria Nourse
Upending Status: A Comment On Switching, Inequality, And The Idea Of The Reasonable Person, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
This article reviews Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, by Cynthia Lee (2003).
Cynthia Lee has written a hard-hitting and insightful book on bias and the law of homicide. Her purpose is to document how murder law’s “reasonable person” may absorb the unreason of prejudice in its various forms (from biases of race to gender to sexual orientation). Doctrinally, Lee’s book is wide-ranging and ambitious, covering a variety of standard defenses, such as provocation (chs. 1–3) and self-defense (chs. 5–7), in contexts ranging from excessive use of force to intimate homicide, from hate …
Walking The Clinical Tightrope: Enhancing The Role Of Teacher, Jane H. Aiken
Walking The Clinical Tightrope: Enhancing The Role Of Teacher, Jane H. Aiken
Georgetown Law Faculty Publications and Other Works
The University of Maryland School of Law is celebrating thirty years of providing exceptional clinical education. Such occasions offer unique opportunities to reflect. In thirty years there has been a lot of growth and a lot of change. Some say that the change has detoured us from the ultimate goal of client service and access to justice. I say that the thirty years have changed us for the better. One thing that hasn't changed is that clinicians still have an abiding interest in dealing with social injustices and in playing a proactive role in ensuring a just society. Thirty years …
American Public Schools Fifty Years After Brown: A Separate And Unequal Reality, Sheryll Cashin
American Public Schools Fifty Years After Brown: A Separate And Unequal Reality, Sheryll Cashin
Georgetown Law Faculty Publications and Other Works
Public schools became more segregated in the 1990s. More so than our neighborhoods, our schools are bastions of race and class privilege on the one hand, and race and class disadvantage on the other. Black and Latino schoolchildren are bearing the heaviest costs of this separation. They tend to be relegated to high-poverty; overwhelmingly minority schools that are characterized by poorer test scores, less experienced teachers, and fewer resources than the type of public schools most white children attend. This Essay argues that public schooling has become the "great equalizer" in America because it tends to place white children in …
Health Of The People: The Highest Law?, Lawrence O. Gostin
Health Of The People: The Highest Law?, Lawrence O. Gostin
Georgetown Law Faculty Publications and Other Works
Law and ethics in population health are undergoing a renaissance. Once fashionable during the Industrial and Progressive eras, the ideals of population health began to wither with the rise of liberalism in the late twentieth century. In their place came a sharpened focus on personal and economic freedom. Political attention shifted from population health to individual health and from public health to private medicine.
The field of public health law and ethics needs a theory and definition (what is public health law and ethics and what are its doctrinal boundaries?); a well-articulated vision (why should health be a salient public …
Pandemic Influenza: Public Health Preparedness For The Next Global Health Emergency, Lawrence O. Gostin
Pandemic Influenza: Public Health Preparedness For The Next Global Health Emergency, Lawrence O. Gostin
Georgetown Law Faculty Publications and Other Works
Severe Acute Respiratory Syndrome (SARS) garnered a great deal of public attention because it was novel and its potential for spread was unknown. However, the SARS corona virus is significantly less virulent than pandemic influenza viral infections. The annual number of deaths for seasonal influenza is 36,000 people in the United States and 250,000- 500,000 worldwide. However, highly pathogenic influenza pandemics have occurred roughly 2-3 times per century, causing untold morbidity and mortality. The Spanish influenza pandemic of 1918 was believed to have caused over 20 million deaths in a world less than one-third the size of the current global …
A Theory Of Crimes Against Humanity, David Luban
A Theory Of Crimes Against Humanity, David Luban
Georgetown Law Faculty Publications and Other Works
The answer I offer in this Article is that crimes against humanity assault one particular aspect of human being, namely our character as political animals. We are creatures whose nature compels us to live socially, but who cannot do so without artificial political organization that inevitably poses threats to our well-being, and, at the limit, to our very survival. Crimes against humanity represent the worst of those threats; they are the limiting case of politics gone cancerous. Precisely because we cannot live without politics, we exist under the permanent threat that politics will turn cancerous and the indispensable institutions of …
The Coiled Serpent Of Argument: Reason, Authority, And Law In A Talmudic Tale, David Luban
The Coiled Serpent Of Argument: Reason, Authority, And Law In A Talmudic Tale, David Luban
Georgetown Law Faculty Publications and Other Works
One of the most celebrated Talmudic parables begins with a remarkably dry legal issue debated among a group of rabbis. A modern reader should think of the rabbis as a collegial court, very much like a secular appellate court, because the purpose of their debate is to generate edicts that will bind the community. The issue under debate concerns the ritual cleanliness of a baked earthenware stove, sliced horizontally into rings and cemented back together with unbaked mortar. Do the laws of purity that apply to uncut stoves apply to this one as well? This stove is the so-called "oven …