Law Commons^™

Introduction, Wendy J. Gordon

Faculty Scholarship

Ralph Sharp Brown crossed out the "Junior" that followed his name after his father died. In explanation of the hand-altered stationery, he said (if my recollection holds), "I'm the only one left now." Now, after Ralph's death, there may remain no Ralph Sharp Browns. But there are many law teachers who continue to wage the campaign that Ralph made his life work: to save an interdependent society from unnecessary and stagnating restraints on liberty. In the intellectual property area, Ralph sought to teach us that it can be both right and necessary to give individuals the liberty to "reap without …

Proceedings Of The 1999 Annual Meeting, Association Of American Law Schools Section On Employment Discrimination Law: Is There A Disconnect Between Eeo Law And The Workplace?, Maria O'Brien, Douglas D. Scherer, James Sharf, Richard Seymour, Paulette Caldwell

Faculty Scholarship

(The following is an edited transcript of the proceedings of the section on Employment Discrimination Law at the AALS Annual Meeting, New Orleans, Louisiana, January 9, 1999.)

DOUGLAS D. SCHERER*: Good morning. The program description asks the question, "Is there a disconnect between existing EEO jurisprudence and the realities of the workplace and workforce of the Twenty-First Century?" Societal disapproval of employment discrimination is reflected in federal EEO laws that have been enacted during the last thirty-six years and in court interpretations of these laws. The goals of these laws are fairly clear. It is less clear how well these …

Taking Future Claims Seriously: Future Claims And Successor Liability In Bankruptcy, Frederick Tung

Faculty Scholarship

Treatment of contingent tort liabilities when a business is sold presents a particular challenge for corporate and bankruptcy law. In this article, I focus on the precarious position of future tort claimants-those who may be harmed by a manufacturer's defective product after the manufacturer has sold its business and disappeared. By the time the future claimant's injury occurs, she may be left with no means of recovery. While the article focuses primarily on the bankruptcy sale context, a discussion of the nonbankruptcy context provides important background.

In the article, I make two claims. First, I address recent proposals suggesting that …

Downsizing The Right To Petition, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

The First Amendment provides that "Congress shall make no law... abridging.., the right of the people.., to petition the Government for a redress of grievances."1 Unlike the First Amendment's speech, press, and religion clauses, this "Petitions Clause" has not spawned an extensive body of case law or academic commentary. The right to petition has been, in many ways, the First Amendment's poor relation.

Systems Of Belief In Modern American Law: A View From Century's End, Gerald B. Wetlaufer

American University Law Review

No abstract provided.

From Special Privilege To General Utility: A Continuation Of Willard Hurst's Study Of Corporations, Susan Pace Hamill

American University Law Review

No abstract provided.

The Law-And-Markets Movement , Michael Abramowicz

American University Law Review

No abstract provided.

Proportionality As An Ethical Precept For Prosecutors In Their Investigative Role, Rory K. Little

Faculty Scholarship

No abstract provided.

Retooling American Discovery For The Twenty-First Century: Toward A New World Order?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Laughing At Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

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

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

Georgetown Law Faculty Publications and Other Works

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

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

An Originalism For Nonoriginalists, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

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

Tax Metamorphosis, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

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

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

Georgetown Law Faculty Publications and Other Works

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

The Article tests the …

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

Georgetown Law Faculty Publications and Other Works

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

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

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

Georgetown Law Faculty Publications and Other Works

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

Dickinson V. Zurko: Limits On The Federal Circuit's Standard Of Review, Sue Ann Mota

Computer Law Review and Technology Journal

Standards ofreview matter -or at least we think they do. After receiving an unfavorable decision from an administrative agency, a party faces a high hurdle on appeal if the standard of review is quite deferential. In Dickinson v. Zurko, the Supreme Court recently held that decisions of the Patent and Trademark Office (PTO) must be reviewed under the relatively lax scrutiny required by the Administrative Procedure Act (APA). In contrast, the Federal Circuit had claimed the right to use the tougher "clearly erroneous" standard in Federal Rule of Civil Procedure 52(a).

Rejecting the historical, statutory, and policy reasons of …

The Ghost In The Computer: Radio Frequency Interference And The Doctrine Of Federal Preemption, Ralph H. Brock

Computer Law Review and Technology Journal

The "Police Blotter" feature in a local Texas newspaper sets the scene. A man had reportedly complained to the police that a neighbor's use of a citizens' band (CB) radio was interfering with his business. He could hear the neighbor's CB radio transmissions on his telephone and through his computer speakers. After installing filters on his telephone and complaining to the FCC, the man had filed a criminal mischief complaint with the local police. Unfortunately for him, though, the local police have no jurisdiction.

Drafting A Patent Noninfringement Opinion Letter In Light Of Markman And Warner-Jenkinson, Barry Dove

Computer Law Review and Technology Journal

This article provides a practical guide to drafting a patent noninfringement opinion letter in light of two recent U.S. Supreme Court decisions: Markman v. Westview Instruments, Inc. and Warner-Jenkinson Co. v. Hilton Davis Chemical Co. The guidelines offered here do not represent the only way to write a noninfringement opinion letter. But if they are followed, the opinion letter should protect the interests of both the client and the patent attorney.

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

The Domain Name Game: Applying Trademark Law To An Internet Tug Of War, Deanna L. Kendall

Computer Law Review and Technology Journal

This article focuses on the unique problems that the domain name registration system creates for traditional trademark law. First, the article discusses the Internet and explains how the domain name system works. Next, it identifies the trademark law that is implicated by the domain name system, paying particular attention to the FTDA. Then, it discusses nonjudicial remedies that may be used by trademark owners and domain name holders to resolve disputes. Finally, it analyzes the current caselaw in the area of domain name disputes and predicts what courts will do when faced with these novel and complex issues.

A Man's Word And Making Money: Contract Law In New York, 1920-1960, William E. Nelson

MC Law Review

No abstract provided.

Table Of Contents-Issue 2, Mc Law

MC Law Review

Table of Contents - Issue 2

Cd-Rom Filings At Trial And Beyond, Clint F. Sare

Computer Law Review and Technology Journal

For motions and briefs, using digital formats - such as a CD-ROM format - may provide significant benefits. Very few courts, however, accept electronic documents for filing in place of paper documents. Thus, for now, computer media may be used only to supplement those traditional filings. This paper discusses the following issues related to CD-ROM filings: (1) when CDROM filings may be allowed in trial and appellate courts; (2) what the disk may and should contain; and (3)whattechnical requirements may apply to such CDROM filings.

Because CD-ROM filings are far from standard, and are sometimes unacceptable, this article is necessarily …

A Jurisprudence In Disarray: On Battery, Wrongful Living, And The Right To Bodily Integrity, Mark Strasser

San Diego Law Review

The right to bodily integrity is firmly entrenched in the right to privacy jurisprudence. An individual who has that right violated by being subjected to an unwanted touching can sue for damages. For example, an individual who receives medical treatment against her will can bring an action for battery, even if that treatment provides her a net benefit.' Yet, the determination of whether our current system provides either sufficient compensation for the victim of a nonconsensual physical invasion or a sufficient disincentive to possible tortfeasors to prevent such invasions is only possible after the potential damages for such invasions are …

Must Post-Termination Procedural Due Process Include A Full, Trial-Like Evidentiary Hearing? A Critique Of Townsel V. San Diego Metropolitan Transit Development Board

San Diego Law Review

The due process clause of the Fourteenth Amendment has been held to prohibit the deprivation of a constitutionally protected property interest without "appropriate procedural safeguards."' The California Court of Appeal for the Fourth District recently decided what procedural safeguards were appropriate for a post-termination hearing following the discharge of a public employee. In Townsel v. San Diego Metropolitan Transit Development Board, the court held that all public employees removable only for cause are entitled to a full, trial-like post-termination evidentiary hearing where the government employer must prove its case against the discharged employee. This Casenote questions the Townsel court's holding.

The First Women Members Of The Supreme Court Bar, 1879-1900, Mary L. Clark

San Diego Law Review

In 1879, Belva A. Lockwood of Washington, D.C., became the first woman member of the bar of the U. S. Supreme Court. Lockwood had applied for admission to the bar three years earlier, but had been refused on the ground that no woman had ever been admitted and thus there was no precedent for women's admission. Not easily defeated, Lockwood lobbied Congress to amend the rules governing admission of attorneys to the Supreme Court bar to allow for women as well as men. In February, 1879, Congress adopted "an Act to relieve certain legal disabilities of women," which authorized women …

Temporal Units Of Prosecution And Continuous Acts: Judicial And Constitutional Limitations

San Diego Law Review

Part II will examine the

historical development and the Supreme Court's application of the so- called rule of lenity when adjudicating cases involving statutes with

unclear units of prosecution Part II will also examine the manner in which unclear draftsmanship has been treated in other areas of law and

will compare those areas of law with the rationale behind the rule of lenity. Finally, Part II will conclude by arguing that the rule of lenity creates a presumption opposing multiple prosecutions for the continuing violation of a statute, unless there is clear legislative intent to the contrary. Part M11 will …

Race, Space, And Place: The Geography Of Economic Development, Audrey G. Mcfarlane

San Diego Law Review

In 1993, Congress authorized a community and economic development program called The Empowerment Zone and Enterprise Cities Demonstration Program ("Empowerment Zones Program") to create geographic zones within certain selected cities that would be eligible for special federal attention to alleviate pervasive conditions of

poverty and economic distress within the cities. The program is self- described as a strategy "to create jobs and business opportunities in [the]

most economically-distressed areas of inner cities' by providing tax incentives and social service funds within the zone to stimulate business creation and expansion and attain, over the long-term, revitalization of

the distressed community. The …

Slaves To Fashion: A Thirteenth Amendment Litigation Strategy To Abolish Sweatshops In The Garment Industry, Samantha C. Halem

San Diego Law Review

Viewed as a relic of a bygone era, modem legal teaching largely ignores the Thirteenth Amendment. Few constitutional law textbooks give it any more than a passing glance.' After all, slavery was abolished in the United States in 1863. While it is true that some scholars have suggested new applications for the Civil War Amendment legal practitioners have found few practical applications. This Article proposes a real world application of the Thirteenth Amendment to a current real world problem. Legal practitioners have under-utilized the Thirteenth Amendment. They should employ the Thirteenth Amendment as a valuable tool for fighting slavery and …