Law Commons^™

The Man Behind The Torture, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but we know less about the choices people make about copyright on a daily basis, especially when they are not at work. Thus, this article examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Fans justify their unauthorized derivative works as legitimate, no matter what formal copyright law says, with …

The Grand Inquisitors, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Defense Of Torture, David Luban

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …

Terrorism And Trial By Jury: The Vices And Virtues Of British And American Criminal Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

British tradition and the American Constitution guarantee trial by jury for serious crime. But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways. First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence. Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, …

Network Stories, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In 1962, Rachel Carson named the natural environment. Scientists were beginning to understand the complex web of ecological cause and effect; naming that web gave it independent existence and invested that existence with political meaning. In 1996, James Boyle named the cultural environment. Boyle’s act of naming was intended to jumpstart a political movement by appropriating the complex web of political meaning centered on the interdependency of environmental resources.

But naming, although important, is only a beginning. The example of the natural environment shows us that to build from a name to a movement requires two things. First, you have …

Refugee Roulette: Disparities In Asylum Adjudication, Andrew I. Schoenholtz, Jaya Ramji-Nogales, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This study analyzes databases of merits decisions from all four levels of the asylum adjudication process: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. In many cases, the most important moment in an asylum …

Doctrinal Issues In Evidence And Proof, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The word evidence ordinarily means the statements, events, items, or sensory perceptions that suggest the existence or nonexistence of, or truth or falsity of, another fact. Thus, one may say, “hoofbeats are evidence a horse may be passing.” Proof is similar in meaning but may connote more certainty.

Evidence can also mean the study of either (1) how people make such inferences (especially when conjoined with the word proof) or (2) how law regulates information admissibility in the judicial context. Evidence in the latter sense is the name of a standard law school course in common law countries and a …

Private Standards, Public Governance: A New Look At The Financial Accounting Standards Board, William W. Bratton

Georgetown Law Faculty Publications and Other Works

The Financial Accounting Standards Board (the "FASB") presents a puzzle: How has this private standard setter managed simultaneously (1) to remain independent, (2) to achieve institutional stability and legitimacy, and (3) to operate in a politicized context in the teeth of opposition from its own constituents? This Article looks to governance design to account for this institutional success. The FASB's founders made a strategic choice to create a regulatory agency that sought independence rather than political responsiveness. The FASB also set out a coherent theory of accounting, the "Conceptual Framework," to contain and direct its decisions. The Conceptual Framework contributed …

Against Citizenship As A Predicate For Basic Rights, David Cole

Georgetown Law Faculty Publications and Other Works

The subject of my remarks will be citizenship, or more precisely the lack thereof, as a wedge issue on matters of rights, the rule of law, and the war on terror. I will argue that we ought to be careful about relying on citizenship as a rallying call for rights and protections precisely because the distinction between citizenship and its lack has proven to be such a tempting avenue for illegitimate trade-offs between liberty and security.

The Rise And Fall Of School Vouchers: A Story Of Religion, Race, And Politics, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

This Article examines why school vouchers have failed to garner the support that so many assumed would follow the Court's decision in Zelman. The explanation, I suggest, concerns religion, race, and politics. The original rationale for vouchers was what I call the "values claim"-vouchers protected the right of parents to send their child to a school that reinforced their values. Originally promoted by Catholics, the values claim was adopted by evangelical Christians concerned about the secularization of public schools after the 1960s. Although the values claim was central for most of the history of the voucher movement, in the decade …

Bottom Up Accountability, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

We live in an age of globalisation, in which States share the stage with other organisations, both public and private, and with individuals. Their activities often have profound impacts on people's lives and their environment. It is perhaps not surprising then, that countries, individuals, communities and non-governmental organisations (NGSs) express ever greater concern about the accountability of international financial institutions, which exercise significant powers. Traditionally such institutions are accountable to the States that created them. But increasingly there are demands that they also be accountable to those whom they serve or directly affect.

Howard T. Markey, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Chief Judge, jet test pilot and Air Force General, lead partner in a highly-respected law firm, law teacher, law dean and sought-after lecturer, Howard T. Markey packed into a single life four distinguished careers, any one of which would merit biographical attention. His early years, however, did not show the promise of what later occurred - or perhaps it did.

Domain And Forum: Public Space, Public Freedom, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The particular problems of content and viewpoint discrimination rarely surface in copyright, though some people have argued that fair use implicates them. Nonetheless, one important lesson for copyright from public forum doctrine is that First Amendment law can take some - though not many - speech-related options off the table. In this brief comment, I argue that analogies between copyright law and public forum doctrine highlight important shared commitments to free and robust public discourse, but also substantial practical barriers to judicial enforcement of those commitments.

Do Charter Schools Threaten Public Education? Emerging Evidence From Fifteen Years Of A Quasi-Market For Schooling, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

Supporters of public education have long feared that charter schools will threaten the public system, both by 1) creaming off the most advantaged students and 2) undermining political support for the public system. These fears have not been borne out. Blacks are disproportionately in charters, whites are disproportionately in traditional public schools, and Hispanics are fairly evenly distributed between the two. Looking at class measures, poor students are distributed fairly equally between the two types of schools. And turning to other measures of privilege, the evidence does not point strongly in either direction. My conclusions are not without qualification. The …

Pandemic Influenza: Ethics, Law, And The Public's Health, Lawrence O. Gostin, Benjamin E. Berkman

Georgetown Law Faculty Publications and Other Works

Highly pathogenic Influenza (HPAI) has captured the close attention of policy makers who regard pandemic influenza as a national security threat. Although the prevalence is currently very low, recent evidence that the 1918 pandemic was caused by an avian influenza virus lends credence to the theory that current outbreaks could have pandemic potential. If the threat becomes a reality, massive loss of life and economic disruption would ensue. Therapeutic countermeasures (e.g., vaccines and antiviral medications) and public health interventions (e.g., infection control, social separation, and quarantine) form the two principal strategies for prevention and response, both of which present formidable …

On Leaving Corporate Executives "Naked, Homeless And Without Wheels": Corporate Fraud, Equitable Remedies, And The Debate Over Entity Versus Individual Liability, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

There is a lively debate about the relative merits of entity versus individual liability in cases involving securities fraud. After reviewing this debate in the context of both private securities litigation and SEC enforcement, this paper considers whether the legal tools available against individual executives are adequate, and if not, what changes might be made. The main focus is on equitable remedies, especially rescission and restitution, under both state and federal law. As to the former, Vice Chancellor Strine’s opinion in In re Healthsouth offers an interesting template, although there are limits on the usefulness of derivative suits to police …

Global Regulatory Strategies For Tobacco Control, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Recent tobacco control regulation in North America and Western Europe has had a salutary effect, even if smoking remains a pressing public health hazard. But in the 21st century, the tobacco industry has quietly moved its locus of activity to lucrative, emerging markets: the vast populations in Africa, Asia, Eastern Europe, and Latin America. The poorest, least educated, and sickest people on earth inhabit these regions. "Big Tobacco's" new marketing strategy will cause untold morbidity for the world's most vulnerable.

However, there are a variety of effective tobacco control policies that nations can and should enact. The World Health Organization …

Climate Change And The Clean Air Act, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In Massachusetts v. EPA, petitioners - twelve states, three cities, an American territory, and numerous health and environmental groups - have asked the Supreme Court to hold that the Clean Air Act gives EPA the power to regulate greenhouse gas emissions from motor vehicles and that EPA may not decline to exercise this power based on statutorily irrelevant factors. The problem petitioners ultimately seek to address - climate change - is unique in its scope and complexity. But the legal issues before the Court in Massachusetts v. EPA are neither particularly grand nor particularly complex. They are the kinds of …

Corporations And Commercial Speech, Ronald Collins, Mark Lopez, Tamara Piety, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

Even though we are discussing a case that was not decided on the merits, Nike v. Kasky is an important case because it crystallizes two of the essential critiques about the commercial speech doctrine, critiques that have run through this doctrine from before its advent in 1976 to today. The fundamental debate Nike triggered over what constitutes "commercial speech" and how strictly commercial speech should be regulated is still being played out - not just in the academy, but also in the courts on a day-to-day basis. So this is a timely and important topic.

Author's Response, John H. Jackson

Georgetown Law Faculty Publications and Other Works

It is a privilege for me to have received the attention to my latest book of such a trio of expertise and scholarly balanced policy perspectives from three different disciplines : economics, law, and diplomacy. It is also a privilege and honor for me to receive from each of these three sometimes divergent disciplines a general overall recognition of what I sought to accomplish in this book. I congratulate the reviewers. The book has an intricate logical structure but struggles with huge amounts of empirical information, in a purposefully short work. All three authors have recognized these features, and seem …

A Unilateral Accident Model Under Ambiguity, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

Standard accident models are based on the expected utility framework and represent agents’ beliefs about accident risk with a probability distribution. Consequently, they do not allow for Knightian uncertainty, or ambiguity, with respect to accident risk and cannot accommodate optimism (ambiguity loving) or pessimism (ambiguity aversion). This paper presents a unilateral accident model under ambiguity. To incorporate ambiguity, I adopt the Choquet expected utility framework and represent the injurer’s beliefs with a neoadditive capacity. I show that neither strict liability nor negligence is generally efficient in the presence of ambiguity. In addition, I generally find that the injurer’s level of …

A Tribute To Hon. George Bundy Smith: Welcome And Introduction, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Opening remarks at ceremony honoring Judge George Bundy Smith, including anecdotes from past students, an overview of Judge Smith’s career and accomplishments, and a recognition of distinguished guests in the audience.

Judge Marilyn Hall Patel: A Dedication, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Judge Patel is known as a judge of the greatest independence and integrity, and her opinions reflect both her concern with the judicial craft and her inspiring commitment to justice and fairness. During her tenure on the Northern District of California, she has issued a series of landmark decisions: she vacated the conviction of a Japanese-American man who had resisted being placed in government internment camps during World War II; boldly declared the gas chamber to be a cruel and unusual form of punishment; ensured the integration of the San Francisco Fire Department; handed down a famous decision in the …

Original Understanding And The Whether, Why, And How Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must …

What’S International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces an immediate and continuous threat of terrorist attack using weapons of mass destruction, including nuclear weapons. The intelligence function and national security law, including international law--or more accurately transnational law--are central to addressing this threat. Indeed, international law is more relevant today in addressing this threat than it was before September 11. Part II of this article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Part …

The Impact On Director And Officer Behavior: Reflective Essays, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

I fall on the side of the skeptics about whether criminal liability in financial reporting cases is a healthy tool because I have doubts about whether judgments are likely to be proportionate. And proportionality is a very important measure in criminal law for two reasons. First, we expect the punishment to fit the crime as a matter of justice. Secondly, if we have disproportionately harsh treatment, then the behavior of officers and directors in response to over-deterrence is that they will pay too much attention to matters that are precautionary as opposed to profit-generating. And the point of a business …

It Depends On What The Meaning Of "False" Is: Falsity And Misleadingness In Commercial Speech Doctrine, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

While scholarship regarding the Supreme Court's noncommercial speech doctrine has often focused on the level of protection for truthful, non-misleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First …

Guilty Pleas And Barristers' Incentives: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of …