Law Commons^™

Human Capabilities And Human Authorities: A Comment On Martha Nussbaum’S Women And Human Development, Robin West

Georgetown Law Faculty Publications and Other Works

What does it mean to be truly human? And, relatedly, what does it mean to be treated as truly human, and with dignity, by the state, or community, of which one is a part? To be fully human, Martha Nussbaum has argued for the better part of two decades, and argues in greater detail in “Women and Human Development”, is not only to be rational, and not only to be happy, but also to be capable - capable, for example, of loving others, of thinking rationally about one's own life, of engaging in dignified labor, of interacting with the natural …

Are Foreign Nationals Entitled To The Same Constitutional Rights As Citizens?, David Cole

Georgetown Law Faculty Publications and Other Works

Are foreign nationals entitled only to reduced rights and freedoms? The difficulty of the question is reflected in the deeply ambivalent approach of the Supreme Court, an ambivalence matched only by the alternately xenophobic and xenophilic attitude of the American public toward immigrants. On the one hand, the Court has insisted for more than a century that foreign nationals living among us are "persons" within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run …

Lessons From Nepal: Partnership, Privilege And Potential, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Dramatic differences in culture present students with the opportunity to gain considerable perspective on their own perceptions and a chance to operate in a legal environment that, like most endeavors in the world today, has become increasingly globalized. This kind of experience has generally been missing in the training of our university law students. The students in Washington University's Civil Justice Clinic have provided legal services to women and children who have been victims of violence in a wide array of socio-economic settings. They have also worked on policy initiatives that shape government on city, state and federal levels. But …

Law As Social Work, Jane H. Aiken, Stephen Wizner

Georgetown Law Faculty Publications and Other Works

In our work as lawyers for low income clients and as clinical teachers, we are sometimes told by our professional counterparts in private practice - especially those who work in large corporate firms - that what we do "isn't law, it's social work." Similarly, our students sometimes complain that the work they do on behalf of low income clients "isn't law, it's social work." In the past we have tended to respond to this "social worker" charge defensively. We insisted that what we and our students do is "law," that it is really no different from what private practitioners do …

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.

The National Security Presidency In Constitutional Context: Reflections On Terrorism And The Presidency From The Last Ten Years, James E. Baker

Georgetown Law Faculty Publications and Other Works

In this time of terrorist threat, there is no more important institution to study than the national security presidency. That is because the president is singularly situated to command the instruments to counter terrorism. He is also singularly situated to ensure that such instruments are used effectively, lawfully, and in a manner consistent with constitutional values. I believe I have a duty, based on where I have been, to help others observe and understand the institution of the presidency. I do so because I want the national security presidency to succeed in providing for our physical security and in upholding …

Who Is Excellent?, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

Who will save the life of that silent teenager--the one over there edging toward the condom table, the one across town wondering whether to take Daddy's gun to school, the girl who is too embarrassed to tell anyone her boyfriend hit her, the child picking up a rock in the Gaza Strip? Affirmative action is about who will save these lives. In all of our institutions, the academy among them, we must make decisions of admission. Who will enter these doors and wield power here? Who will ascend to the position of decision maker? Who will walk off with the …

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 …

Comments On Warren Grimes: Transparency In Federal Antitrust Enforcement, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

In this review, I will concentrate on the policies and experiences of the Federal Trade Commission - an agency with which I am more familiar than the Department of Justice. Professor Grimes appreciates that FTC disclosure policies provide more information than the Antitrust Division of the DOJ. I will leave it to others to explain why Department of Justice policies, particularly in the area of criminal enforcement, deserve to be different.

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 …

Panel Presentation: Securities Regulation And Corporate Responsibility, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

What I want to do is talk about the big picture, as John suggested, and consider the likely spillover effects of Sarbanes-Oxley. I want to do this in a discretely administrative law-oriented way, taking two themes that were very visible and driving forces behind the legislation. The first, as Mary suggested in her opening remarks, is a question about federalism. It has been common for the last twenty years, at least, to trot out - as John just did - a distinction between federal and state spheres of competency. The SEC is on the disclosure side, while the substance of …

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 …

Law And Force After Iraq: A Transitional Moment, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

What impact will the Iraq war of 2003 have on international law governing the use of force and on the future of the United Nations Security Council? Some commentators have proclaimed that the military intervention led by the United States amounted to the "death" of the UN Charter and the end of "the grand attempt to subject the use of force to the rule of law." The Security Council's failure to reach agreement--in the face of French-U.S. antagonisms--spells the end, they argue, of an effective Council role in addressing major threats to peace and security. My own view is that …

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 …

Digital Architecture As Crime Control, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This paper explains how theories of realspace architecture inform the prevention of computer crime. Despite the prevalence of the metaphor, architects in realspace and cyberspace have not talked to one another. There is a dearth of literature about digital architecture and crime altogether, and the realspace architectural literature on crime prevention is often far too soft for many software engineers. This paper will suggest the broad brushstrokes of potential design solutions to cybercrime, and in the course of so doing, will pose severe criticisms of the White House's recent proposals on cybersecurity.

The paper begins by introducing four concepts of …

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 …