Law Commons^™

Self-Historicism, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Among the contributors to this symposium, I may be the person with the longest acquaintance with Sandy Levinson. I want to begin, therefore, with a recollection of the period of my earliest contacts with Sandy - a recollection that, as I hope to show, has some bearing on some of the aspects of Sandy's work that most interest me . . . I use these examples to introduce an argument connected to Sandy's longstanding interest in historical memory. The casebook of which he is a co-author is organized historically-relentlessly so, I would put it, to the point where I personally …

Leveling The Playing Field: Federal Rules Of Evidence 412 & 415: Evidence Class As A Platform For Larger (More Important) Lessons, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Teachers often approach Federal Rules of Evidence 412 and 415 with trepidation. After all, it means that a law teacher will have to talk about sex, with a group (often a large group) of law students - many of whom are in their early twenties and have never had a non-peer conversation about sex. It looks like a recipe for disaster. Let me suggest just the opposite - it offers the law teacher an opportunity to address perhaps one of the most important lessons of law school: the law only works if there is a level playing field.

Minnesota Wild, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In these remarks I am going to tell two stories and then add - to the growing list compiled so far in this Symposium - two new quasi-religious, metaphorical figures. In keeping with our overall theme of eco-pragmatism, my remarks will be experimental, contingent, even nonlinear. I hope you will indulge me.

Clinical Uncertainty And Healthcare Disparities, Maxwell Gregg Bloche, Ana I. Balsa, Thomas G. Mcguire, Naomi Seiler

Georgetown Law Faculty Publications and Other Works

The Institute of Medicine Report, Unequal Treatment: Confronting Racial and Ethnic Disparities, affirms in its first finding: "Racial and ethnic disparities in health care exist and, because they are associated with worse outcomes in many cases, are unacceptable." The mechanisms that generate racial and ethnic disparities in medical care operate at the levels of the health care system and the clinical encounter. Research demonstrates the role of health care system factors, including differences in insurance coverage and other determinants of healthcare access, in producing disparities. Research also shows, however, that even when insurance status and other measures of access are …

Remarks Of Seth P. Waxman At The Memorial Observance For Justice Byron R. White, United States Supreme Court, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Members of the Court, members of the family, and friends of Justice White- Alone among today's speakers, I met Justice White only late in his life. Growing up in the law, my relationship with him was the one many kids today have with Michael Jordan - I wanted to be "like White" -like the kind of man he was. I still have that aspiration. Like Byron White, I served in the Department of Justice and was altered forever by that honorable institution. And - like Justice White, in my own lesser way, I strove within the walls of this institution …

Rex E. Lee Conference On The Office Of The Solicitor General Of The United States: Panel For Former Solicitors General, Seth P. Waxman, Walter E. Dellinger Iii, Kenneth W. Starr, Charles Fried, Drew S. Days Iii

Georgetown Law Faculty Publications and Other Works

I agree entirely that the chain of command is clear and that the Framers managed to make it all the way through all the articles of the Constitution without even conceiving of a solicitor general, let alone bothering to mention an attorney general. It is important nonetheless to distinguish between those things the solicitor general does pursuant to the longstanding notice-and-comment regulation, and the other things a solicitor general may do pursuant to his (and, someday, her!) statutory obligation to be of general assistance to the attorney general.

Rex E. Lee Conference On The Office Of The Solicitor General Of The United States: Clinton Ii Panel, Seth P. Waxman, Walter E. Dellinger Iii, Barbara D. Underwood, Michael R. Dreeben

Georgetown Law Faculty Publications and Other Works

I will say a few words about Dickerson, both because Michael has made it impossible not to and also because in some ways it represents the very best about how all of the wonderful, tried-and-true processes of the SG's Office ought to work. Dickerson was very much like the other case that Michael talked about (which is one of, I think, two significant privilege controversies which the Independent Counsel laid on our doorstep). These cases may have appeared to the outside world as paradigmatically cases in which we would be hearing from the White House, or talking to the White …

Paradigm Lost: Recapturing Classical Rhetoric To Validate Legal Reasoning, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

At the inception of their careers, most lawyers have little or no background in classical rhetoric. Many law students enter law school thinking that they will receive formal training in either logic or rhetoric, but very few law schools even teach classes in these subjects. In the absence of any formal training, most lawyers learn to write persuasively by imitating “good” legal writing. The consequence for the legal profession is an abundance of legal writing that is not grounded conceptually in the rhetorical tradition from which it is derived. The principal problem with legal writing is not that lawyers cannot …

An Imperial Security Council? Implementing Security Council Resolutions 1373 And 1390, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

The UN Security Council has taken important steps against terrorism since the attacks of September 11, 2001. Some of those steps build on previous Security Council counterterrorism efforts; others represent significant innovations. I will focus in particular on Resolution 1373, which the Council adopted on September 28, 2001, and on Resolution 1390, adopted four months later in January 2002.

American Servicemembers' Protection Act Of 2002, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

On July 1, 2002, the Rome Statute of the International Criminal Court ("ICC") entered into force, establishing the first permanent international criminal tribunal. Although seventy-six countries had ratified the Rome Statute by that date, the United States was not among them. Instead, Congress responded to the creation of the ICC by passing a bill sponsored by House Majority Whip Tom DeLay (R-Tex.) that Republican legislators had been trying to get through the House and Senate for several years. On August 2, 2002, the American Servicemembers' Protection Act of 2002 ("ASPA") became law. The Act was designed to prevent United States …

Conspiracy Theory, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justification for the legal prohibition against conspiracy, centering on psychological and economic accounts. Advances in psychology over the past thirty years have demonstrated that groups cultivate a special social identity. This identity often encourages risky behavior, leads individuals to behave against their self-interest, solidifies loyalty, and facilitates harm against non-members. So, too, economists have developed sophisticated explanations for why firms promote …

E Wars - Episode One: The Patent Menace, Raymond Van Dyke

Computer Law Review and Technology Journal

With the advent of the Information Age and the consequent transformation of our society, information companies have recognized the importance of protecting their business methodologies. As with any technological revolution, competition between the players is intense, and in this new arena of business, competitors have turned patents into a weapon of choice. Thus, businesses need new strategies to avoid becoming unnecessary casualties in this war.

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

What Online Activity Does The Wiretap Act Protect? The Ninth Circuit Holds That Unauthorized Access Of A Secure Website Does Not Violate The Federal Wiretap Act Konop V. Hawaiian Airlines, Inc., Thomas P. Ludwig

Computer Law Review and Technology Journal

Throughout the last half-century, there has been constant tension in the communication arena between individual privacy interests and the interests of law enforcement in proactively combating crime and terrorism. The difficulty in maintaining a balance between these interests has been compounded by the explosive development in electronic communication technology over the last several decades. In an attempt to bring the state of privacy protection law up to date with modem technology, Congress enacted the Electronic Communications Privacy Act of 1986 ("ECPA"). While the ECPA was enacted "to update and clarify Federal privacy protections and standards," both the usage and the …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Temptations To Take: Misappropriation Of Trade Secrets, Damages And Remedies, Eric S. Tautfest

Computer Law Review and Technology Journal

Protecting trade secrets serves two basic functions: it provides a means for preserving standards of commercial ethics and it encourages innovation. In contrast to a patent or a copyright, a trade secret has no statutory limitation and can, conceivably, be protected forever. Further, while patent and copyright protection extends only to certain types of materials or information, trade secret protection extends to a wide range of information. Additionally, trade secrets are not publicly disclosed; with patents, the entire patent file and its contents become public property.

In Texas, trade secret protection is defined by a large body of welldeveloped case …

Game When They Win; Investment When They Lose: Sec V. Sg, Ltd., Todd M. Tippett

Computer Law Review and Technology Journal

Congress established the Securities Act of 1933 and the Securities Exchange Act of 1934 to protect citizens from fraud in a wide array of financial instruments, ranging from well-established investment vehicles such as stocks and bonds to the more elusive concept of the investment contract. The landmark case of SEC v. W.J. Howey Co. has long grounded judicial efforts in defining what is and what is not an investment contract. The various federal circuit courts struggle, however, with the applicability of one prong of the Howey test, namely the requirement of a "common enterprise," with no indication of an agreement …

Patent Pending ... Pending ... Pending The Evolution Of Equivalents: Festo Corp. V. Shoketsu Kinzoku Kabushiki Co., Karly Stoehr

Computer Law Review and Technology Journal

Information is rapidly becoming many firms' most valuable resource and the patents protecting inventions have become critical strategic assets. In May of 2002, the Supreme Court unanimously issued a ruling on the doctrine of equivalents that will likely trigger inconsistent results in future patent protection cases. Patent holders acquire a limited monopoly of twenty years to generate profits. Patent protection is critical because there is a strong need to provide firms with sufficient incentives to create and invest in new technologies. It is important, therefore, to provide clear guidelines for patent procedures so that inventors may rely on future protection. …

Ashcroft V. Aclu: The Fate Of The Child Online Protection Act, Marybeth Eyrich

Computer Law Review and Technology Journal

Concerns about the proliferation and accessibility of cyber-porn motivated Congress to pass legislation intended to protect children from on-line pornography. This nascent attempt to regulate the Internet has not yet passed constitutional muster, as Congress's efforts to protect children have been thwarted by First Amendment challenges. Ashcroft v. ACLU examines, but does not resolve, the constitutionality of the Child Online Protection Act ("COPA"). The issue in Ashcroft was whether COPA's use of "community standards" to identify "material that is harmful to minors" violated the First Amendment. In a plurality opinion, the Court held that COPA's use of "community standards" does …

Clients' Views On Privacy And Security After September 11: Have They Changed? Should They? An Information Technology Lawyer's Perspective, Richard G. Lyon

Computer Law Review and Technology Journal

No abstract provided.

Looking For A Crack To Break The Internet's Back: The Listen4ever Case And Backbone Provider Liability Under The Copyright Act And The Dmca, Daniel W. Kopko

Computer Law Review and Technology Journal

In August 2002, a group of 13 record labels brought a lawsuit against the four major companies that provide the "backbone" infrastructure of the Internet. The record labels sought an injunction under section 512 of the Digital Millennium Copyright Act of 1982 ("DMCA") to compel the defendants to block access to a China-based website, Listen4Ever.com ("Listen4ever"), that offered free downloads of entire albums of copyrighted music from its central server. The labels alleged that Listen4ever located its operations in China specifically to evade U.S. copyright laws. They noted that the site was in English and offered almost exclusively music by …

Personal Jurisdiction: Lost In Cyberspace?, Susan Nauss Exon

Computer Law Review and Technology Journal

No abstract provided.

The Erosion Of Online Privacy Rights In The Recent Tide Of Terrorism, Thomas P. Ludwig

Computer Law Review and Technology Journal

Imagine a world where any idea or message communicated to another individual is subject to governmental scrutiny for possible criminal, subversive, or terroristic content. The current location of any individual, as well as the places that he or she commonly frequents, can easily be tracked through that person's phone calls, online activity, and financial records, which are all accessible to government agencies. By intercepting e-mails and tracking online browsing, shopping, and other activities, the most intimate details, habits, and preferences of the average individual are readily available to the prying eyes of cyber-criminals and law enforcement officials alike. Scenarios such …

Law, Religion, And Human Rights In Global Perspective, Mark Modak-Truran

MC Law Review

Law and Religion Symposium: Introduction

Incorporating Common Law Into The Constitution Of Canada: Egale V. Canada And The Status Of Marriage, Mark D. Walters

Osgoode Hall Law Journal

Recent decisions of the Supreme Court of Canada raise complicated questions about the relationship between the common law and the Constitution. In particular, a distinction may now be drawn between constitutional common law concepts that are "incorporated" by the Constitution and those that are "free-standing" or "text-emergent." The author explores the significance of these distinctions by examining the argument, accepted in the recent case of EGALE V. Canada, that the reference to marriage in section 91(26) of the Constitution serves to incorporate the common law definition of marriage into the Constitution, thus preventing federal or provincial legislation from legalizing same-sex …

Financial Collapse And Class Status: Who Goes Bankrupt?, Elizabeth Warren

Osgoode Hall Law Journal

Every policy prescription, economic analysis, or news report about consumer bankruptcy rests on one or another unspoken image of the estimated 1.5 million families that will file in a single year. Data from the 2001 Consumer Bankruptcy Project permit a systematic analysis of the composition of those who file for personal bankruptcy, focusing on their education, occupation, and home ownership status. These attributes serve as a proxy for class identification. Based on these indicia, more than 90 per cent of the families in bankruptcy qualify as middle class. These data are a powerful reminder that whatever else might be said …

Secession, Constitutionalism, And American Experience, Mark Brandon

Articles

No abstract provided.

A History Lesson: Reparations For What?, Emma Coleman Jordan

Georgetown Law Faculty Publications and Other Works

A major difficulty facing the reparations-for-slavery movement is that to date the movement has focused its litigation strategies and its rhetorical effort upon the institution of slavery. While slavery is the root of modern racism, it suffers many defects as the centerpiece of a reparations litigation strategy. The most important difficulty is temporal. Formal slavery ended in 1865. Thus, the time line of potentially reparable injury extends to well before the period of any person now living. The temporal difficulty arises from the conventional expectations of civil litigation, which require a harmony of identity between the defendants and the plaintiffs. …

Students’ Writing Backgrounds: A Survey, Susan Wawrose

School of Law Faculty Publications

We now know that many experienced lawyers think newly-minted attorneys “do not write well.”1 Law professors complain that students do not write well when they enter law school. Undergraduate professors say their students do not write well when they enter college. I suspect the complaint continues on down the ladder of K- 12 education. Are students learning to write in college, high school, and elementary school? To shed light on the question, I surveyed students in my legal writing class about their writing experience. I wanted to know what kind of writers I was teaching. Had they been taught fundamental …

Exam Writing As Legal Writing: Teaching And Critiquing Law School Examination Discourse, Adam Todd

School of Law Faculty Publications

This article adds to the growing body of scholarship on legal writing and its role in the legal academy. It addresses an area of legal discourse that is of importance to law students, the legal academy and the bar admissions process, yet has been neglected in legal scholarship. The article is a call for legal writing faculty members and other legal writing specialists to become more involved in the process of teaching about and critiquing the discourse involved in traditional end-of-semester doctrinal law school exams. This article suggests how law school legal writing programs, by deliberately teaching about exam writing, …