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2007

Georgetown Law Faculty Publications and Other Works

Articles 1 - 30 of 74

Full-Text Articles in Law

The Man Behind The Torture, David Cole Dec 2007

The Man Behind The Torture, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.


Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet Aug 2007

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but we know less about the choices people make about copyright on a daily basis, especially when they are not at work. Thus, this article examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Fans justify their unauthorized derivative works as legitimate, no matter what formal copyright law says, with …


The Grand Inquisitors, David Cole Jul 2007

The Grand Inquisitors, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.


The Defense Of Torture, David Luban Mar 2007

The Defense Of Torture, David Luban

Georgetown Law Faculty Publications and Other Works

No abstract provided.


Terrorism And Trial By Jury: The Vices And Virtues Of British And American Criminal Law, Laura K. Donohue Mar 2007

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, …


Why Preemption Proponents Are Wrong, Brian Wolfman Mar 2007

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …


Judge Marilyn Hall Patel: A Dedication, William Michael Treanor Jan 2007

Judge Marilyn Hall Patel: A Dedication, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Judge Patel is known as a judge of the greatest independence and integrity, and her opinions reflect both her concern with the judicial craft and her inspiring commitment to justice and fairness. During her tenure on the Northern District of California, she has issued a series of landmark decisions: she vacated the conviction of a Japanese-American man who had resisted being placed in government internment camps during World War II; boldly declared the gas chamber to be a cruel and unusual form of punishment; ensured the integration of the San Francisco Fire Department; handed down a famous decision in the …


Technology Unbound: Will Funded Libertarianism Dominate The Future?, Steven Goldberg Jan 2007

Technology Unbound: Will Funded Libertarianism Dominate The Future?, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

The panel decision in Abigail Alliance, which found a constitutional right to use certain medicines that have not received Food and Drug Administration approval, may not survive further review, but it already stands as an important signpost on the road to further deregulation of the drug market. This trend mirrors the evolution of the in vitro fertilization (IVF) industry which is remarkably unregulated although it raises numerous ethical and consumer protection issues. These developments share an obvious libertarian underpinning, but in both cases it is an odd sort of libertarianism, because proponents of unmediated access to drugs and IVF also …


Restorative Justice: What Is It And Does It Work?, Carrie Menkel-Meadow Jan 2007

Restorative Justice: What Is It And Does It Work?, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced — criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews — by examining empirical studies of the processes in different settings — how restorative justice has been criticized, what its limitations and achievements might be, and how it might be understood. I explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials and for their actual …


Bottom Up Accountability, Edith Brown Weiss Jan 2007

Bottom Up Accountability, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

We live in an age of globalisation, in which States share the stage with other organisations, both public and private, and with individuals. Their activities often have profound impacts on people's lives and their environment. It is perhaps not surprising then, that countries, individuals, communities and non-governmental organisations (NGSs) express ever greater concern about the accountability of international financial institutions, which exercise significant powers. Traditionally such institutions are accountable to the States that created them. But increasingly there are demands that they also be accountable to those whom they serve or directly affect.


Trademark Law As Commercial Speech Regulations, Rebecca Tushnet Jan 2007

Trademark Law As Commercial Speech Regulations, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

False advertising law has largely escaped constitutional scrutiny because courts consider false or misleading commercial speech outside the protection of the First Amendment. Even moderate First Amendment protection for truthful commercial speech, however, requires some constitutional policing of the line between truth and falsity. Current enforcement of false advertising law, whether administrative, as with the FDA's regulation of drug-related speech, or judicial, as with Lanham Act suits brought by private parties, is ill-equipped to deal with First Amendment doctrine's very different concerns, rules, and presumptions. This contribution to the symposium will explore some of the ways in which the First …


The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith Jan 2007

The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith

Georgetown Law Faculty Publications and Other Works

As all practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even criminal trial lawyers: we talk with and advise clients. Sometimes, after considering the government’s case and available defenses, we advise clients to go to trial. More often, we advise them to take a plea.

In counseling our clients we can be as “client-centered” as the next lawyer, graciously acceding to our clients’ wishes. This is especially so when the client is making what we regard to be a reasonable choice. But clients are not always reasonable. Sometimes they are …


Biomedical Research Involving Prisoners: Ethical Values And Legal Regulation, Lawrence O. Gostin Jan 2007

Biomedical Research Involving Prisoners: Ethical Values And Legal Regulation, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Until the early 1970's, approximately 90% of all pharmaceutical research was conducted on prisoners, who were also subjected to biochemical research, including studies involving dioxin and chemical warfare agents. By the mid-1970's, biomedical research in prisons sharply declined as knowledge of the exploitation of prisoners began to emerge and the National Commission for the protection of Human Subjects of Biomedical Research was formed. Federal regulations to protect human subjects of research were established in 1974. Special protections for prisoners were added in 1978, severely limiting research involving prisoners. However, the US correctional system has undergone major changes since the adoption …


Domain And Forum: Public Space, Public Freedom, Rebecca Tushnet Jan 2007

Domain And Forum: Public Space, Public Freedom, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The particular problems of content and viewpoint discrimination rarely surface in copyright, though some people have argued that fair use implicates them. Nonetheless, one important lesson for copyright from public forum doctrine is that First Amendment law can take some - though not many - speech-related options off the table. In this brief comment, I argue that analogies between copyright law and public forum doctrine highlight important shared commitments to free and robust public discourse, but also substantial practical barriers to judicial enforcement of those commitments.


Global Regulatory Strategies For Tobacco Control, Lawrence O. Gostin Jan 2007

Global Regulatory Strategies For Tobacco Control, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Recent tobacco control regulation in North America and Western Europe has had a salutary effect, even if smoking remains a pressing public health hazard. But in the 21st century, the tobacco industry has quietly moved its locus of activity to lucrative, emerging markets: the vast populations in Africa, Asia, Eastern Europe, and Latin America. The poorest, least educated, and sickest people on earth inhabit these regions. "Big Tobacco's" new marketing strategy will cause untold morbidity for the world's most vulnerable.

However, there are a variety of effective tobacco control policies that nations can and should enact. The World Health Organization …


Public-Private Health Law: Multiple Directions In Public Health, Nan D. Hunter Jan 2007

Public-Private Health Law: Multiple Directions In Public Health, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

No public law is more public than public health law. Its defining subject is the use of state power to control and prevent death and disease. Its primary institutions are a cluster of state actors, the governmental agencies that comprise the American public health "system.,, The system grew out of the eighteenth century boards of health that produced the beginnings of administrative law. Public health law is grounded on statutory provisions that authorize various forms of state action and on judicial decisions that resolve constitutional challenges to those actions.


Environmental Law After Katrina: Reforming Environmental Law By Reforming Environmental Lawmaking, Richard J. Lazarus Jan 2007

Environmental Law After Katrina: Reforming Environmental Law By Reforming Environmental Lawmaking, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

Hurricane Katrina's overriding lesson for environmental law is no less than our environmental lawmaking institutions require fundamental reformation. Otherwise, the nation's tragic failure not only to enact laws that anticipate the obvious risks presented to the Gulf Region by hurricanes, but perversely to increase those risks by destroying the ecosystem's natural protections, will inevitably be repeated with even more devastating results.


Climate Change And The Clean Air Act, Lisa Heinzerling Jan 2007

Climate Change And The Clean Air Act, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In Massachusetts v. EPA, petitioners - twelve states, three cities, an American territory, and numerous health and environmental groups - have asked the Supreme Court to hold that the Clean Air Act gives EPA the power to regulate greenhouse gas emissions from motor vehicles and that EPA may not decline to exercise this power based on statutorily irrelevant factors. The problem petitioners ultimately seek to address - climate change - is unique in its scope and complexity. But the legal issues before the Court in Massachusetts v. EPA are neither particularly grand nor particularly complex. They are the kinds of …


Why The Customer Isn’T Always Right: Producer-Based Limits On Rights Accretion In Trademark, Rebecca Tushnet Jan 2007

Why The Customer Isn’T Always Right: Producer-Based Limits On Rights Accretion In Trademark, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

In this article the author responds to James Gibson’s article Risk Aversion and Rights Accretion in Intellectual Property Law, which offers valuable insights into the extra-judicial dynamics that have contributed to the seemingly unending expansion of copyright and trademark rights over the past few decades. Her response focuses on the trademark side of that expansion. The theoretical basis for granting trademark rights is that, if consumers perceive that a mark or other symbol indicates that a single source is responsible for a product or service—whether through physical production, licensing, sponsorship, or other approval—then the law should give effect to …


Affirmative Inaction, Girardeau A. Spann Jan 2007

Affirmative Inaction, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Perhaps the most exasperating aspect of racial discrimination in the United States is the self-righteous manner in which it is practiced. After a history of facilitating white exploitation of minority interests, the Supreme Court intimated in Grutter v. Bollinger that time was running out for racial minorities to take advantage of the opportunities for equality that the culture has offered in the form of affirmative action. Justice O'Connor's majority opinion seemed to say that in another twenty-five years, the Court would cease to tolerate such special favors for racial minorities, thereby leaving minorities only a limited amount of time remaining …


Network Stories, Julie E. Cohen Jan 2007

Network Stories, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In 1962, Rachel Carson named the natural environment. Scientists were beginning to understand the complex web of ecological cause and effect; naming that web gave it independent existence and invested that existence with political meaning. In 1996, James Boyle named the cultural environment. Boyle’s act of naming was intended to jumpstart a political movement by appropriating the complex web of political meaning centered on the interdependency of environmental resources.

But naming, although important, is only a beginning. The example of the natural environment shows us that to build from a name to a movement requires two things. First, you have …


Underlying Principles, Randy E. Barnett Jan 2007

Underlying Principles, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, the author cautions that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text …


Legislative Compromise And Tax Transition Policy, Michael Doran Jan 2007

Legislative Compromise And Tax Transition Policy, Michael Doran

Georgetown Law Faculty Publications and Other Works

The extensive literature on legal transitions has formed a general position in favor of establishing a governmental transition policy; the primary debate concerns whether the policy should be one of systematically mitigating or not mitigating transition losses. Arguments on both sides generally have assumed a sharp dichotomy between a substantive legal change and the transition treatment associated with the substantive change. Focusing on federal tax legislation, this article challenges that assumption and the normative conclusions that it supports.

Specifically, this article identifies compromise as an important component of the tax legislative process and argues that the ability to provide or …


Chumming On The Chesapeake Bay And Complexity Theory: Why The Precautionary Principle, Not Cost-Benefit Analysis, Makes More Sense As A Regulatory Approach, Hope M. Babcock Jan 2007

Chumming On The Chesapeake Bay And Complexity Theory: Why The Precautionary Principle, Not Cost-Benefit Analysis, Makes More Sense As A Regulatory Approach, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Estuaries like the Chesapeake Bay ("Bay") and Puget Sound are in grave trouble. They each suffer from poor water quality, loss of habitat, and declining biodiversity, and efforts to restore their health are straining both public and private resources. While accomplishments are often recorded in the fight against these ills, it is clear these accomplishments "are not yet equal to the scale of the problems." The focus of this article is on the nation's largest estuary, the Bay. Despite the investment of billions of dollars to improve water quality, the Bay continues to suffer from severe environmental degradation that impairs …


Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor Jan 2007

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor …


Odious, Not Debt, Anna Gelpern Jan 2007

Odious, Not Debt, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This article argues that the doctrine of Odious Debt, which has enjoyed a revival since the U.S. invasion of Iraq in 2003, frames the problem of odious debt in a way that excludes most of the problematic obligations incurred by twentieth-century despots. Advocacy and academic literature traditionally describe the odious debt problem as one of government contracts with private creditors. Most theories of sovereign debt key off the same relationship. But in the latest crop of cases, including Iraq, Liberia, and Nigeria, private creditors represent a small fraction of the old regime's debts. Most of the creditors are other governments …


Doctrinal Issues In Evidence And Proof, Paul F. Rothstein Jan 2007

Doctrinal Issues In Evidence And Proof, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The word evidence ordinarily means the statements, events, items, or sensory perceptions that suggest the existence or nonexistence of, or truth or falsity of, another fact. Thus, one may say, “hoofbeats are evidence a horse may be passing.” Proof is similar in meaning but may connote more certainty.

Evidence can also mean the study of either (1) how people make such inferences (especially when conjoined with the word proof) or (2) how law regulates information admissibility in the judicial context. Evidence in the latter sense is the name of a standard law school course in common law countries and a …


Our Other Reproductive Choices: Equality In Sex Education, Contraceptive Access, And Work-Family Policy, Cornelia T. Pillard Jan 2007

Our Other Reproductive Choices: Equality In Sex Education, Contraceptive Access, And Work-Family Policy, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

Reproductive rights are traditionally understood to be protected by the privacy aspect of the due process liberty guarantee, but equal protection is also at the heart of the matter. Many of us intuitively know the close relationship between sex equality and abortion rights, and the law, too, is starting to reflect it. This Symposium broadens the focus of traditional abortion-rights jurisprudence to develop equality-based analyses of abortion rights. Widening the angle even further, this Article looks at sex equality and reproductive rights issues beyond the core right to abortion . . . To highlight some of the opportunities created by …


Impacts Of White, Roy A. Schotland Jan 2007

Impacts Of White, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Changes in judicial elections stem from four identifiable causes. First, court decisions involve increasingly higher stakes and more serious consequences. The U.S. Senate confirmation battles also reflect this cause. Second, non-candidate groups, many from out of state, bring in enormous sums of money which often leads to ugly, even damaging, campaigns. Third, the first two causes are making judicial campaigns more like non-judicial campaigns, bringing new elements to judicial campaigns: campaign consultants and a win-at-any-cost approach.


The Federal “Claim” In The District Courts: Osborn, Verlinden, And Protective Jurisdiction, Carlos Manuel Vázquez Jan 2007

The Federal “Claim” In The District Courts: Osborn, Verlinden, And Protective Jurisdiction, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In the title of his influential article, “The Federal ‘Question’ in the District Courts,” Professor Paul Mishkin reminded us that the phrase “federal question” is a misnomer as a description of the “arising under” jurisdiction of the district courts. The purpose of the “arising under” jurisdiction of the district courts is not solely, or even primarily, to resolve disputed questions of federal law, but to provide a hospitable forum for the vindication of federal rights. Such rights can be frustrated by an inhospitable forum not just through the misinterpretation of federal law, but through misinterpretation of state law or through …