Law Commons^™

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.

Wellington’S Labors, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

My first class as a student at Yale Law School was the first class Harry Wellington taught there. It was the Fall of 1956. The course was Contracts. Harry entered the classroom, looking no older than the students (in truth, he 'wasn't much older), but surely better dressed. He settled himself on the corner of the desk, and the magic began. Without introduction or fanfare, Harry embarked on a monologue about a magazine that kept arriving, uninvited, in his mailbox each month. He confessed to leafing through the pages from time to time, and wondered if this obligated him to …

The Greening Of America And The Graying Of United States Environmental Law: Reflections On Environmental Law’S First Three Decades In The United States, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this article is to begin to place the developments of the past few decades in historical perspective. To that end, the article is divided into three parts, roughly corresponding to the final three decades of the past century. The first part of the article describes the origins of U.S. environmental law, focusing primarily on its first decade from 1970 through 1980. The second part examines how U.S. environmental laws have since evolved, focusing primarily on their second decade (the 1980s), which was a period of tremendous expansion for environmental law. Finally, the third part considers future trends …

Can They Do That? Legal Ethics In Popular Culture: Of Characters And Acts, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This Essay describes the depiction of modern lawyers' professional ethics in literature, films, and television, and distinguishes between personal and professional character and specific acts. Depictions of lawyers in modern popular culture are more complex and nuanced than older treatments and allow law students, lawyers, and legal academics an opportunity to examine both ethical rule violations and "micro" behavioral choices, as well as character and more "macro" professional career choices and philosophies in a variety of contexts and serialized plot, treatments. Treatments of professional ethics in more recent popular culture are also contrasted to more literary examinations of both lawyers' …

Aha? Is Creativity Possible In Legal Problem Solving And Teachable In Legal Education?, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This article continues and expands on my earlier project of seeking to describe how legal negotiation should be understood conceptually and undertaken behaviorally to produce better solutions to legal problems. As structured problem solving requires interests, needs and objectives identification, so too must creative solution seeking have its structure and elements in order to be effectively taught. Because research and teaching about creativity and how we think has expanded greatly since modern legal negotiation theory has been developed, it is now especially appropriate to examine how we might harness this new learning to how we might examine and teach legal …

What Courts Can Do In The Face Of The Never-Ending Asbestos Crisis, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The purpose of this article is not to argue that claimants suffering from serious asbestos-related diseases should not be compensated. To the contrary, one of the points of this article is that absent some change in the way asbestos claims are resolved, claimants who become truly sick in the future may not receive adequate compensation. Changing the current asbestos compensation system would be pro-claimant. Also, the purpose of this article is not to ascribe blame. Rather, it is to fix a problem. The judges cannot be blamed for their good intentions. Neither can the plaintiffs' attorneys be blamed for zealously …

The Bakaly Debacle: The Role Of The Press In High-Profile Criminal Investigations, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Others have examined why prosecutors or law enforcement agents may be inclined to "leak" information regarding ongoing criminal investigations, documented the rules that govern federal prosecutors' interaction with the press in such circumstances, outlined the difficulties encountered in enforcing those rules, and critiqued the performance of Mr. Starr's office in this regard. In other words, the dynamic as it flows from governmental actors to the press has been scrutinized. I would like to suggest that a more searching examination be conducted of the press's role, and perhaps its responsibilities, in this context. Because I am neither a journalist nor a …

Constitution-Talk And Justice-Talk, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Inside the courts, one might distinguish between constitution-talk and justice-talk on the ground that the former, but not the latter, results in enforceable legal judgments. So, inside the courts, we might interpret the Constitution with justice in mind, but what we do is produce legally enforceable judgments. Outside the courts, however, it might seem that all we do is interpret and talk. It is not immediately obvious that cloaking justice-talk as constitution-talk outside the courts has much rhetorical force. As I will argue, the fact that invoking the Constitution outside the courts, in the course of discussing justice, does have …

Faulty Adversarial Performance By Criminal Defenders In The Crown Court, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Who is the more able advocate, the lawyer in the United States or the barrister in England and Wales? Answering that question is extremely difficult because of a multitude of differences in the procedural regimes in which each works and in the scope of each's responsibility. Yet, one facet stands out, like a full moon in a dark sky: The comparative number of defenders who on appeal have been accused of having provided inappropriate representation in the process leading to conviction . . . Part 1 discusses the procedural hurdles that make challenging the trial barrister's conduct more difficult than …

Federalism And International Human Rights In The New Constitutional Order, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay examines the contours of what I have elsewhere called the new constitutional order with respect to international human rights and federalism. The background is my suggestion that the U.S. political-constitutional system is on the verge of moving into a new constitutional regime, following the end of the New Deal-Great Society constitutional regime. The Supreme Court's innovations in the law of federalism in connection with Congress's exercise of its powers over domestic affairs has provoked speculation about the implications of those innovations for the national government's power with respect to foreign affairs. Most of the speculation has been that …

Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

In this brief Comment I make two points. First, the subconstitutional doctrines appear to have the advantage of allowing elected lawmakers to pursue whatever course they wish, as long as they satisfy the requirements of these subconstitutional doctrines. In practice, however, what appears to be a provisional invalidation based on subconstitutional law turns out to be - and, indeed, might be expected at the moment of decision to be - a final, unrevisable decision. Further, courts might strategically deploy these sub constitutional doctrines to avoid the sting of the charge that they are foreclosing legislative choice while effectively doing so. …

"Shut Up He Explained", Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and, …

Rights, Capabilities, And The Good Society, Robin West

Georgetown Law Faculty Publications and Other Works

In Part I this essay explores and then criticizes the two major arguments behind the conventional wisdom that rights undermine efforts to secure a state role in ensuring the material preconditions for a good society, and therefore, the material preconditions for the development of those human capabilities essential to a fully human life. I conclude in this part that this understanding of rights is mistaken. In Part II, I urge that the pragmatic argument put forward by rights critics and some welfare advocates for forgoing rights-talk and rights-rhetoric also fails: there are very real costs, both in theory and in …

Defending Congress, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Every year the Solicitor General must decide, one case at a time, what the interests of the United States are with respect to several thousand different cases in the federal and state courts. Should the United States appeal, or seek rehearing, or petition for certiorari, or file a brief amicus curiae, or intervene? What issues should the United States raise, and what arguments should it make? How should the law be interpreted or the doctrine applied? The goal is for the United States to speak with one voice - a voice that reflects the interests of all three branches of …

In The Shadow Of Daniel Webster: Arguing Appeals In The Twenty-First Century, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

It is natural - I suppose it is expected - for every Solicitor General to hold forth at some point during his tenure with pearls of wisdom on the Twelve Secrets, or Ten Commandments, or Five Essential Rules of effective oral advocacy. I have always been reluctant to do that . . . reluctantly, after years of resistance, I too will unburden myself of a few principles. First, though, I would like to reach back in history for some inspiration by reflecting a bit on Daniel Webster.

Provocateurs For Justice, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Clinical legal education offers unique opportunities to inspire law students to commit to justice. Merely providing a justice experience is not enough. We must provoke a desire to do justice in our students. As provocateurs, we determine where our students are in the developmental process toward "justice readiness." This article outlines those developmental stages and suggests interventions to assist students in their transition from stage to stage. Being "justice ready" requires sensitivity to the ways in which assumptions color all aspects of our cases. The article closes with suggestions and examples of how to critically reflect on assumptions that hinder …

Collusion And Collective Action In The Patent System: A Proposal For Patent Bounties, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Persistent commentary contends that the Patent Office is issuing patents that appropriate public domain concepts at an alarming frequency. Complaints of low patent quality enjoy growing resonance with regard to business methods, computer software, and other inventions for which patents were not traditionally sought. In this article, Professor Jay Thomas explains how the judiciary's lenient view of patentable subject matter and utility standards, along with miserly congressional funding policies, have rendered the Patent Office an increasingly porous agency. Professor Thomas next reviews existing proposals for improving patent quality, including the conventional wisdom that adoption of an opposition system will contribute …

Challenges Of The New Economy: Issues At The Intersection Of Antitrust And Intellectual Property, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

There is wide agreement that the last decade or so has presented an unusually lively and challenging period for antitrust analysis. Among many reasons we can point to are deregulation and problems of transition to a free market (telecommunications and electricity production offer leading examples), developments in procedural cooperation and possible substantive convergence in response to the increasing globalization of competition and enforcement approaches, and priorities in addressing an unprecedented merger wave. An additional challenge involves the application of established antitrust principles to the growing high-tech sector of the economy. It is that application of antitrust law to the new …

Law As Culture, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

This Essay is an attempt to theorize the relationship of law to culture and culture to law beyond the intuitive, commonplace sense that law partakes of culture - by reflecting it as well as by reacting against it - and that culture refracts law. It proposes a theory of law as culture that, in detailing the mutually constitutive nature of the relationship, distinguishes itself from the way law and culture have been conceived by realist and critical legal scholars, as well as by social norms writers. The Essay concludes by speculating about one possible method by which this theorizing might …

Tortious Toxics, Lisa Heinzerling, Cameron Powers Hoffman

Georgetown Law Faculty Publications and Other Works

In this Article we offer one small idea with potentially large implications. We propose the recognition arid development of a special tort for toxic exposures, where the exposures have not yet led to a physical illness such as cancer. We argue, in brief, that this new tort would, in one simple step, accomplish three things: it would address many of the problems with the courts' current handling of toxic torts; it would consolidate the many overlapping causes of action now pressed in toxic tort cases into one single claim; and it would give expression to the real injury motivating these …

Two Views Of The River: A Critique Of The Liberal Defense Of Affirmative Action, Charles R. Lawrence Iii

Georgetown Law Faculty Publications and Other Works

In response to the attack on affirmative action at educational institutions, the argument that the benefits of diversity necessitate keeping affirmative action has emerged as the dominant defense of race-conscious admissions policies. Describing this argument as the “liberal defense of affirmative action,” Professor Lawrence critiques the liberal defense because it fails to challenge the manner in which traditional standards of merit perpetuate race and class privilege, and pushes aside more radically, substantive defenses of affirmative action which articulate the need to remedy past and ongoing discrimination. While recognizing the difficulties and ambivalence inherent in advancing a new vision for defending …

Tribute To Norman Dorsen, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

It is an enormous delight for me to contribute to this dedication ceremony honoring Norman Dorsen. It did require, however, that I go back and note the fact that I wrote for the Annual Survey thirty-seven years ago. Not only did I discuss antitrust, I made some confident predictions. I noted with alarm that there had been five hundred corporate mergers in the previous year, but pointed out that that would level off as time went on. Well, five hundred would be a quiet month at the Federal Trade Commission these days. I am delighted with the Annual Survey's decision …

Open Access And The First Amendment: A Critique Of Comcast Cablevision Of Broward County, Inc. V. Broward County, David Wolitz

Georgetown Law Faculty Publications and Other Works

To what extent does the Free Speech Clause of the First Amendment bar the adoption of “open access” regulations? Open access (or “net neutrality”) refers to a policy that would require broadband Internet providers, such as cable and phone companies, to allow competitive Internet Service Providers (ISPs) onto their broadband lines at nondiscriminatory rates. A federal district court in Florida recently held Broward County’s open access ordinance unconstitutional on the grounds that it would force speech – in the form of Internet content – on to the local cable company. If the district court’s analysis is correct, then open access …

Academic Freedom Of Part-Time Faculty, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Everyone assumes that part-time faculty should enjoy a full measure of academic freedom. The American Association of University Professors (AAUP) has consistently argued for it. Martin Michaelson's draft "Academic Freedom Policy and Procedures," a touchstone for this symposium, accords academic freedom through contract to full-time and part-time faculty without distinction. A recent article in the Chronicle of Higher Education raised the alarm that "To Many Adjunct Professors, Academic Freedom Is a Myth;" nowhere did it question the normative claim that an adjunct should enjoy complete academic freedom.

The Supreme Court In Real Time: Haste, Waste, And Bush V. Gore, Michael Herz

Articles

No abstract provided.

The Sex Discrimination Argument In Gay Rights Cases, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The argument that laws that discriminate on the basis of sexual orientation in fact discriminate on the basis of sex is not new. Advocates have been pressing this claim for almost thirty years. Simply put, the argument is that a statute that bars a sexual relationship between two women or two men discriminates on the basis of sex because either partner could have had the same relationship with a person of the opposite sex.

Proportional Equality: Readings Of Romer, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

One of the great enigmas of equal protection law is Romer v. Evans. In finding sufficient power in the rational basis test to invalidate a state constitutional amendment enacted by popular vote, the Supreme Court left legal scholars in its doctrinal dust, puzzled over the answers to multiple questions. Was this a new rational basis test? If so, how could one know when to apply it? Had the standard of review for state acts adversely affecting lesbian, gay and bisexual Americans changed? If so, to what? Had Bowers v. Hardwick been overruled? If so, why?

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 …

Making A Federal Case Out Of It: Section 1981 And At-Will Employment, Joanna L. Grossman

Hofstra Law Faculty Scholarship

This Article is divided into four parts. Part I describes the history and origins of § 1981, its bloodletting by the Supreme Court, and its ultimate restoration and reinvigoration by Congress. Part II first describes the federal appellate opinions addressing the applicability of § 1981 to at-will employment. It then examines the source of law question: whether state law, federal law, or some combination ought to dictate the definition of “contract” in § 1981. It concludes that federal common law, which may draw on well-established state law principles, should control. Part III examines the possible interpretations of “contract” as used …

Mediation And Adr: Insights From The Jewish Tradition, Robert A. Baruch Bush

Hofstra Law Faculty Scholarship

Two initial points will provide some context for these remarks. First, my primary professional involvement has been not in legal practice as such, but in alternative dispute resolution ("ADR") and mediation, which has been my field of concentration over the last twenty-five years, both before and after coming to Hofstra Law School. Therefore, my comments will focus on how my view of this field has been affected by my religious tradition.

Second, the perspective reflected in these comments grows out of my own particular experience in relation to the Jewish tradition. Specifically, my involvement in Jewish traditional life and thought …