Law Commons^™

Toyota Jurisprudence: Legal Theory And Rolling Rule Regimes, William H. Simon

Faculty Scholarship

The engineering ideas associated with the Toyota Production System form a model of social organization that departs from bedrock assumptions of mainstream legal thought in both its rights-and-principles and law-and-economics variants.

In contrast to mainstream thought, the Toyota system (1) emphasizes the goals of learning and innovation (rather than of dispute resolution and the vindication of established norms and preferences), (2) combines the normative explicitness associated with formal rules with the continuous adjustment to particularity associated with informal norms (no dialectic of rules and standards), (3) treats normative decisionmaking in hard cases as presumptively collective and interdisciplinary (rather than the …

Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault

Faculty Scholarship

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters …

The International Privacy Regime, Tim Wu

Faculty Scholarship

Privacy has joined one of many areas of law understandable only by reference to the results of overlapping and conflicting national agendas. What has emerged as the de facto international regime is complex. Yet based on a few simplifying principles, we can nonetheless do much to understand it and predict its operation.

First, the idea that self-regulation by the internet community will be the driving force in privacy protection must be laid to rest. The experience of the last decade shows that nation-states, powerful nation-states in particular, drive the system of international privacy. The final mix of privacy protection that …

Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss

Faculty Scholarship

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen …

Mome In Hindsight, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Two decades ago, the Virginia Law Review published our article “The Mechanisms of Market Efficiency” (MOME), in which we tried to discern the institutional underpinnings of financial market efficiency. We concluded that the level of market efficiency with respect to a particular fact depends on which of several market mechanisms — universally informed trading, professionally informed trading, derivatively informed trading, and uninformed trading (each of which we explain below) — operates to reflect that fact in market price. Which mechanism is operative, in turn, depends on how widely the fact is distributed among traders, which, I turn, depends on the …

Connection, Capacity And Morality In Lawyer-Client Relationships: Dialogues And Commentary,, Robert Dinerstein, Stephan Ellmann, Isabelle Gunning

Scholarly Articles in Law Reviews & Journals

As important,and difficult, as it is to offer new law students clearand helpful frameworks for the interpersonalwork of lawyering, do-ing so is only part of what a clinical textbook may aspire to. In ourtextbook-in-progress, we hope to offer both frameworks and support for students' sense of the incompleteness of every framework and for their recognition of the need for careful,flexible response to each in-dividual client. Even care and flexibility by themselves are notenough, however, and every text must choose which aspects of law- yer-client relationshipsit will emphasize most. In the sections thatfol-low, we focus on lawyers' development of "connection in …

Regulating Internet Payment Intermediaries, Ronald J. Mann

Faculty Scholarship

The Internet has produced significant changes in many aspects of commercial interaction. The rise of Internet retailers is one of the most obvious changes, but oddly enough the overwhelming majority of commercial transactions facilitated by the Internet use a conventional payment system. Thus, even in 2002, shoppers made at least eighty percent of Internet purchases with credit cards. To many observers, this figure has come as a surprise. The early days of the Internet heralded a variety of proposals for entirely new payment systems – generically described as electronic money – that would use wholly electronic tokens that consumers could …

More Is Less, Philip A. Hamburger

Faculty Scholarship

Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the …

Earned Sovereignty: An Emerging Conflict Resolution Approach, Paul Williams, Karen Heymann

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Preemption In The 21st Century: What Are The Legal Parameters?, Paul Williams, Scott Lyons, Tali Neuwirth

Scholarly Articles in Law Reviews & Journals

While there has been significant political discussion as to the utility and/or risks associated with the doctrine of preemption, the legal debate has to date been fairly limited. Few if any have sought to define the legal parameters of the doctrine. The purpose of this article is to help define the appropriate legal parameters for use of the doctrine. This article will first review the strategic rationale for preemption, and a detailed definition of the modern doctrine. This will be followed by a review of the United States’ government’s legal rationale and a review of the emerging legal debate before …

Speech And Strife, Robert L. Tsai

Scholarly Articles in Law Reviews & Journals

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Scrubbing The Wash Sale Rules, David M. Schizer

Faculty Scholarship

Loss limitations are an ugly but inevitable feature of any realization-based income tax. In essence, because the system mismeasures gains, it also has to mismeasure losses. Otherwise, the "timing option" inherent in the realization rule would allow taxpayers to defer gains (thereby reducing the tax's present value) while accelerating losses (thereby preserving the deduction's present value). This "strategic trading" would erode the tax on risky positions, leading to inefficiencies as taxpayers developed a taste for risky positions, became "locked in" to appreciated positions, and sold loss positions they otherwise would keep. Distributional issues also would arise as the effective tax …

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded …

Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen

Faculty Scholarship

The subject matter we are going to talk about is variously named and thewords have some resonances of importance. I am going to use the phrase "Free Software" to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally.

My purpose this …

Just Monogamy?, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift state and federal prohibitions on same-sex marriage have inspired people across the political spectrum to speak about the virtues of monogamy’s core institution and to express views on who should be included within it. In this brief comment, I want to talk about something else. Like an “unmannerly wedding guest,” I want to invite the reader to pause amidst the whirlwind of marriage talk, to think about alternatives to monogamy. In particular, I want to talk about multiparty relationships, or “polyamory,” as these relationships are called …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

I am honoured to contribute to this Festschrift for Bill Cornish, the leading exponent of the English (even if many of them are in fact Anzacs) School of Copyright and Intellectual Property. In addition to greatly valuing his scholarship, I hold Bill in especial esteem for his unswerving sanity in ALAI meetings, and for the piano duets in which he occasionally indulges my spouse. The following essay is offered in the spirit of international inquisitiveness that has animated so many of my contacts with Bill.

Philosophy Of Contract Law, Jody S. Kraus

Faculty Scholarship

This article identifies a set of methodological commitments that help to explain the methodological differences between autonomy (deontic) and economic contract theories that have opposing views about the nature of law and legal theory. It begins with the discussion of the four methodological issues that divide contemporary autonomy and economic theories of contract. The dispute over the relative priority of the normative and explanatory enterprises of contract theory may simply reflect the different theoretical goals of deontic and economic theorists. These intellectual origins may explain not only the different priorities of deontic and economic contract theories, but their different conceptions …

Clients As Teachers, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

I am deeply honored to have been selected to hold the William Van Cleve Chair. After the announcement several months ago, I have had the pleasure of having people tell me just how wonderful a man Bill Van Cleve was and how lucky I am to have this chair in honor of him. The picture that I have gotten of this man is truly that of the lawyer statesman. He took his profession very seriously. He approached his work with dedication and passion but, more significantly, he loved his profession in the broadest sense. He understood that the practice of …

Regulatory Takings Challenges To Historic Preservation Laws After Penn Central, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Penn Central decision, in its most immediate concern, provided a legal framework within which local governments could enforce historic landmark restrictions without a regular constitutional requirement to pay "just compensation." The decision amalgamated regulatory takings analysis of historic landmark restrictions to the familiar and tolerant federal standards for reviewing zoning. Affirming the importance of the public interest goals of historic preservation, the Court directed inquiry to whether sufficient economic potential remained in the control of the property owner, given reasonable expectations at the time of her investment in the property. While the broader jurisprudential merits of Penn Central's approach …

Gaming Delaware, William W. Bratton

Georgetown Law Faculty Publications and Other Works

Back in 2000, at the World Trade Center in Portland, Oregon, Time Belden and other Enron electricity traders carefully studied the regulations governing California's new electricity market. Belden thought that the complex rules were "prone to gaming." And game them he did. Under one strategy, Enron filed imaginary transmission schedules, creating nonexistent congestion, so as to draw on the rules' provision of payment to alleviate congestion. They called it "Death Star." Then there was "Ricochet," or megawatt laundering, under which Enron circumvented price caps by exporting power out of California, only to bring the power back later, when the State, …

The Proper Scope Of The Police Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this Article, I will contend that the Constitution is not really silent at all on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism-and its limits. These limits require that interpretation of original meaning be implemented by means …

Leaders, Followers, And Free Riders: The Community Lawyer’S Dilemma When Representing Non-Democratic Client Organizations, Michael R. Diamond, Aaron O'Toole

Georgetown Law Faculty Publications and Other Works

This article will explore various aspects of the dissonance between the democratic ideal and the reality of groups in disenfranchised and disempowered communities. We will discuss the intersection of democracy and community action by examining the sociology of groups and the social psychology of leaders and followers. We will also examine the role of, and choices presented to, an attorney working in a community and for local community groups.

Folktales Of International Justice, David Luban

Georgetown Law Faculty Publications and Other Works

When Laura Dickinson asked me to participate on this panel, she very nicely said that she hoped I could bring a different perspective to the discussion. I thought I knew what she meant. The other panelists share a profound knowledge of how international criminal-law institutions work. My "different perspective" would therefore be the perspective of abject ignorance.

Taking comfort from the Socratic dictum that there is wisdom in knowing what you do not know, I accepted the invitation because it gives me the opportunity to pose questions rather than proposing answers. I will raise my questions by examining some stories …

Sunsetting Judicial Opinions, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Contemporary constitutional law, in its quest for judicial restraint, has primarily focused on "the how" of judging - what interpretive methods will constrain the decisionmaker? This Article, by contrast, focuses on the "when"- if there are reasons to think that today's judicial decisions might later prove to be problematic, then are there methods that alter the timing of those decisions' impact to produce better outcomes? This Article outlines one new method for judicial decisionmaking in the post-9/11 world. Informed by pervasive legislative practices, I contend that the Supreme Court should prospectively declare that some of its national security opinions will …

The Varied Policies Of International Juridical Bodies: Reflections On Theory And Practice, John H. Jackson

Georgetown Law Faculty Publications and Other Works

I would like to turn to how my current thinking and writing relate to the broader issues of international law norm creation. One such article is quite recent and it represents some of my thinking in these broader general issues. It is entitled Sovereignty Modern, and it is a close look at the question of sovereignty and how it affects the fundamental logic of international law. I do not pretend that I have finalized my views, but fundamentally very few people really accept the original, Westphalian idea of sovereignty anymore. There are many other constructs of what sovereignty currently means, …

Even More Parodic Than The Real Thing: Parody Lawsuits Revisited, Bruce P. Keller, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

An article focusing on a copyright decision initially may appear out of place in the pages of The Trademark Reporter®. Yet Campbell v. Acuff-Rose Music, Inc., in which the U.S. Supreme Court held that a parodic, transformative use of a copyrighted work, even if commercial, could qualify as a fair use, is quite significant for trademark lawyers. As a practical matter, parody cases increasingly involve copyright as well as trademark claims, so practitioners often encounter both within the same case. As a doctrinal matter, Campbell also has proved legally significant in trademark cases because the free-speech concerns underlying protection for …

Constitutional Hardball, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: …

The Secret Life Of The Political Question Doctrine, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."

The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming …

Some Thoughts On Proposed Revisions To The Organizational Guidelines, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

In this article, Professor O'Sullivan, who served as the reporter for the U.S. Sentencing Commission's Ad Hoc Advisory Group for Organizational Sentencing Guidelines, reflects on that Group's work. She concludes that the potential impact of many of the policy fixes within the power of the Sentencing Commission is dwarfed by decisions that lie solely within the power of the Department of Justice or Congress. Specifically, Department of Justice decisions regarding what constitutes organizational "cooperation" may have a determinative impact on organizational incentives regarding compliance efforts and decisions to investigate, self-report, and cooperate in the remediation of organizational wrongdoing. Professor O'Sullivan …

Lecture Commentary On Islam And International Law: Toward A Positive Mutual Engagement To Realize Shared Ideals, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

An-Na'im as I read him is postulating a process theory when it comes to the relationship of Islamic law to international law. He is advocating a bargaining relationship in which the Islamic side and the international side meet as equals in negotiating their contributions to the universal international. This process-based equality can only be achieved if, first, the international eschews its We sternness and the Islamic retains its internal sense of diversity, indeed secularism. The international abandons its Westernness when it abandons its pre-World War II impulse to colonize, imperialize, and hegemonize, acts which at heart render equality in the …