Law Commons^™

Financial Crisis Containment, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This Article maps financial crisis containment - extraordinary measures to stop the spread of financial distress - as a category of legal and policy choice. I make three claims.

First, containment is distinct from financial regulation, crisis prevention and resolution. Containment is brief; it targets the immediate term. It involves claims of emergency, rule-breaking, time inconsistency and moral hazard. In contrast, regulation, prevention and resolution seek to establish sound incentives for the long term. Second, containment decisions deviate from non-crisis norms in predictable ways, and are consistent across diverse countries and crises. Containment invariably entails three kinds of choices: choices …

Self-Realizing Inventions And The Utilitarian Foundation Of Patent Law, Alan J. Devlin, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Unlike other forms of intellectual property, patents are universally justified on utilitarian grounds alone. Valuable inventions and discoveries, bearing the characteristics of public goods, are easily appropriated by third parties. Because much technological innovation occurs pursuant to significant expenditures—both in terms of upfront research and subsequent commercialization costs—inventors must be permitted to extract at least part of the social gain associated with their technological contributions. Absent some form of proprietary control or alternative reward system, economics predicts that suboptimal capital will be devoted to the innovative process.

This widely accepted principle comes with an important corollary: namely, that canons of …

International Lawyer’S Guide To Legal Analysis And Communication In The United States, Kimberli Kelmor

Georgetown Law Faculty Publications and Other Works

Aspen Publishers has published another very useful book for non-U.S. students and practitioners who are faced with understanding U.S. law. At first, I was a bit perplexed that Aspen had published this book, since the company also publishes the widely used Legal Reasoning, Research, and Writing for International Graduate Students by Nadia Nedzel. However, while the content does overlap some, the two books have slightly different target audiences and overall goals. One of the main differences is that while Nedzel spends a great deal of time on U.S. legal research, the International Lawyer's Guide explicitly does NOT cover legal research. …

Doctrinal Dilemma, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009).

Professor Kimberly West-Faulcon has identified a tension between state anti-affirmative action laws and the continued enrollment of minority students in public universities, and the author argues the tension is not surprising, because the voter initiatives that led to those state anti-affirmative action laws were transparently motivated by white majoritarian desires to reduce minority student enrollment in public universities. He feels what is surprising, however, is Professor West-Faulcon’s suggestion that state anti-affirmative action laws can themselves …

Judge Sonia Sotomayor’S Tax Opinions, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

Judge Sonia Sotomayor has written three published opinions on federal taxation, one as a District Court judge and two as a Court of Appeals judge. Two of the opinions deal with routine matters and are unremarkable in the sense that it is difficult to imagine the cases coming out any other way. Her third opinion, however, in William L. Rudkin Testamentary Trust v. Commissioner, 467 F.3d 149 (2d Cir. 2006), aff'd sub nom. Knight v. Commissioner, 552 U.S. 181, 128 S. Ct. 782 (2008), generated a sharp difference of opinion with Chief Justice Roberts. Although Chief Justice Roberts, writing for …

The Separation Of People And State, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The subject of American exceptionalism, about which much has been written, is extremely complex. There is no simple way to describe all the ways in which America differs from the other nations of the world.

The United States Constitution is a central part of the creed that defines, creates, and preserves American exceptionalism. The American vision of constitutionalism includes at least four distinctive elements:

• the belief in adherence to a founding document: a written Constitution;
• the belief in constitutionally limited government;
• the legal enforcement of these limits by an independent judiciary, and the invocation of these limits by the Congress, …

Postracial Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Claims of racial injustice can be challenged by arguing that the culture makes it possible for minorities to compete with whites on a level playing field. Under this reasoning, racial disparities that continue to inhere in the allocation of societal benefits and burdens must be caused by the attributes of individual minority group members themselves, rather than by any invidious consideration of their race. The election of President Obama now gives this argument more apparent plausibility than it has had in the past. Indeed, if one were inclined to preserve the nation’s tradition of privileging white interests over the interests …

The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.

In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and …

Empirical Health Law Scholarship: The State Of The Field, Michelle M. Mello, Kathryn Zeiler

Georgetown Law Faculty Publications and Other Works

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection--empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges--practical, methodological, and political.

The purpose of this Article is to survey the current state of the field by describing commonly used methods, analyzing enabling and …

Missouri V. Holland’S Second Holding, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court in Missouri v. Holland famously held that Congress has the power to pass a law to implement a treaty even if the law would not fall within Congress’ legislative power in the absence of the treaty. Essential to this holding were two distinct propositions. The first proposition is that the treaty-makers have the constitutional power to make treaties on matters falling outside Congress’ enumerated powers. The second is that, if the treaty-makers make such a treaty and the treaty is not self-executing, the Necessary and Proper Clause gives Congress the power to implement such a treaty through …

Assuming Personal Responsibility For Improving The Environment: Moving Toward A New Environmental Norm, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

There is general agreement that we are nearing the end of achieving major gains in pollution abatement from traditional sources, that a significant portion of the remaining environmental problems facing this country is caused by individual behavior, and that efforts to control that behavior have either failed or not even been made.

The phenomenon of individuals as irresponsible environmental actors seems counterintuitive when polls show that people consistently rate protecting the environment among their highest priorities, contribute to environmental causes, and are willing to pay more to protect environmental resources.

This article is the author's second effort at understanding why …

The Public Trust Doctrine: What A Tall Tale They Tell, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Despite continuing hostility towards the public trust doctrine because of its potential to defeat private property rights and the will of elected representatives, the doctrine refuses to die. It continues to assure public access to and protection of certain natural resources of communal value; in fact, the doctrine's geographic reach and the activities it protects have expanded beyond its original conception. It is this doctrinal accretion that has drawn the attention of Professor James Huffman, who in a recent article criticizes the "ambitions" of public trust scholars who see in "an expansive public trust doctrine . . . a powerful …

Supreme Neglect Of Text And History, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Supreme Neglect: How to Revive Constitutional Protection for Private Property by Richard A. Epstein (2008).

In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the …

No Ordinary Success: The Boundaries Of School Reform, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

How much can schools improve the life prospects of children growing up in poor neighborhoods? This question has divided the education community since at least the 1960s, when a group of researchers led by James Coleman attempted to quantify the extent to which segregation hurt black children. Coleman concluded that differences in family background had a greater impact on student achievement than did differences in school quality. Almost 40 years later, former New York Times education columnist Richard Rothstein revisited the question. In a series of lectures at Columbia University’s Teachers College that became the book Class and Schools (2004), …

Campus Violence: Understanding The Extraordinary Through The Ordinary, Nancy Chi Cantalupo

Georgetown Law Faculty Publications and Other Works

Recent mass shootings on college campuses have focused many on the responsibilities of colleges and universities to prevent and respond to such violence. However, in statistical terms, this type of campus violence can thankfully be considered relatively extraordinary. In contrast, the only type of campus violence that is unfortunately common enough to be characterized as “ordinary” is peer sexual assault and similar forms of campus gender-based violence. Accordingly, this essay explores the scope and dynamics of both “ordinary” and “extraordinary” campus violence, discusses the law and “best practices” dealing with peer sexual violence victims’ rights and the due process rights …

Asat-Isfaction: Customary International Law And The Regulation Of Anti-Satellite Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – …

Is Law? Constitutional Crisis And Existential Anxiety, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety—to my mind, the most interesting form—is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I …

Dean Mary Daly: A Tribute, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

I met Mary Daly for the first time on the day I began work at Fordham Law in 1991. I had an office on the second floor of the faculty corridor, and Mary's office was a few offices down the hall. Mary was already a well-established member of the faculty, a star at the U.S. Attorney's Office who had become a star in academia. I was new to Fordham and anxious as I began my career in teaching. Characteristically, and not surprisingly, Mary was the first one to come to my office to greet me. It has been almost twenty …

The Sec And The Madoff Scandal: Three Narratives In Search Of A Story, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

This essay, part of a symposium on narrative in corporate law, considers various portrayals of the complicity of the SEC in the Bernard Madoff scandal--including the Commission's own Inspector General's report issued in September 2009. It considers possible explanations (revolving door problems, incompetence and sloth, etc.) but suggests that the story is deeper and more frustrating, arising out of the relative poverty in which the SEC operates, which in turn leads to habits of thought and action that leave too much unnoticed and undone. The interesting question, then: why the poverty? The essay concludes with a political explanation. While by …

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …

A Reply To Pierre, Robin West

Georgetown Law Faculty Publications and Other Works

In this article, the author responds to Pierre Schlag's statement that legal scholarship is dead and that live scholarship, by contrast to the stuff we produce, aims for truths that are both important and hard to uncover—the latter is what requires discipline, and the former distinguishes scholarship from ordinary observation. The “life” in lively scholarship lies partly in the quest but also in the substantial payoff: growth, when we have been convinced of something important and previously unknown; change, when we see the world differently because of it; restoration, when old truths are revalidated; breath itself, when new insights pry …

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …

Hidden Taxes, Brian Galle

Georgetown Law Faculty Publications and Other Works

The idea of hidden taxes is as old as John Stuart Mill, but convincing evidence of their existence is new. In this Article, I survey and critique recent studies that claim to show that there are some taxes that can go unnoticed by those who pay them. I also develop the array of unanswered theoretical questions and policy implications that potentially follow from the studies' results.

Probably the central question for hidden taxes is whether they might enable government to raise revenue without also distorting the economy. If so, I argue, they have the potential to radically refashion the architecture …

The Lds Church, Proposition Eight, And The Federal Law Of Charities, Brian Galle

Georgetown Law Faculty Publications and Other Works

This brief Commentary considers the merits of the argument that the Mormon Church's support for Proposition Eight violated federal tax law. I take as given the facts reported by the New York Times and other major news outlets. Although the facts are not really in dispute, much of the underlying law is. There are few clear guidelines governing lobbying by charities. In the end it is impossible to say with certainty whether the Church's conduct will have any tax-law repercussions. My conclusion that there is uncertainty, though, stands in contrast with existing claims that the expenditures of the LDS Church …

Tax Penalties And Tax Compliance, Michael Doran

Georgetown Law Faculty Publications and Other Works

This paper examines the relationship between tax penalties and tax compliance. Conventional accounts, drawing from deterrence theory and norms theory, assume that the relationship is purely instrumental--that the function of tax penalties is solely to promote tax compliance. This paper identifies another aspect of the relationship that generally has been overlooked by the existing literature: the function of tax penalties in defining tax compliance. Tax penalties determine the standards of conduct that satisfy a taxpayer's obligations to the government; they distinguish compliant taxpayers from non-compliant taxpayers. This paper argues that tax compliance in a self-assessment system should require the taxpayer …

Super Wicked Problems And Climate Change: Restraining The Present To Liberate The Future, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

Climate change may soon have its “lawmaking moment” in the United States. The inherent problem with such lawmaking moments, however, is just that: they are moments. What Congress and the President do with much fanfare can quickly and quietly slip away in the ensuing years. This is famously so for environmental law. Subsequent legislative amendments, limited budgets, appropriations riders, interpretive agency rulings, massive delays in rulemaking, and simple nonenforcement are more than capable of converting a seemingly uncompromising legal mandate into nothing more than a symbolic aspirational statement. Climate change legislation is especially vulnerable to being unraveled over time for …

The Emergent Logic Of Health Law, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching fifty million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this Article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …

Strengthening Demand For The Rule Of Law In Post-Conflict Societies, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

Building the rule of law in the wake of military conflict has proven to be a complex and formidable challenge in countries as diverse as Iraq, Afghanistan, Timor-Leste, and Sierra Leone. It has become clear in these and other situations that strengthening the rule of law is not simply a matter of building institutions-courts, legislatures, and so forth-or enacting better laws. The rule of law also depends crucially on building public trust and confidence in those institutions. Or, to put it another way, strengthening the rule of law is not only a question of the supply side of institutions, but …

Human Dignity, Humiliation, And Torture, David Luban

Georgetown Law Faculty Publications and Other Works

Modern human rights instruments ground human rights in the concept of human dignity, without providing an underlying theory of human dignity. This paper examines the central importance of human dignity, understood as not humiliating people, in traditional Jewish ethics. It employs this conception of human dignity to examine and criticize U.S. use of humiliation tactics and torture in the interrogation of terrorism suspects.