Law Commons^™

Why The Customer Isn’T Always Right: Producer-Based Limits On Rights Accretion In Trademark, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

In this article the author responds to James Gibson’s article Risk Aversion and Rights Accretion in Intellectual Property Law, which offers valuable insights into the extra-judicial dynamics that have contributed to the seemingly unending expansion of copyright and trademark rights over the past few decades. Her response focuses on the trademark side of that expansion. The theoretical basis for granting trademark rights is that, if consumers perceive that a mark or other symbol indicates that a single source is responsible for a product or service—whether through physical production, licensing, sponsorship, or other approval—then the law should give effect to …

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 …

Underlying Principles, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, the author cautions that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text …

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …

"I Ain't Takin' No Plea": The Challenges In Counseling Young People Facing Serious Time, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Criminal defendants daily entrust their liberty to the skill of their lawyers. The consequences of the lawyer’s decisions fall squarely upon the defendant. There is nothing untoward in this circumstance. To the contrary, the lawyer as the defendant’s representative is at the core of our adversary process.

As practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even trial lawyers: we talk with and advise clients. As criminal lawyers know, the decision whether to go to trial is “the most important single decision” a client faces, and requires wise counsel. …

The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith

Georgetown Law Faculty Publications and Other Works

As all practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even criminal trial lawyers: we talk with and advise clients. Sometimes, after considering the government’s case and available defenses, we advise clients to go to trial. More often, we advise them to take a plea.

In counseling our clients we can be as “client-centered” as the next lawyer, graciously acceding to our clients’ wishes. This is especially so when the client is making what we regard to be a reasonable choice. But clients are not always reasonable. Sometimes they are …

National Security And Environmental Laws: A Clear And Present Danger?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Without question, life in the United States has changed significantly since September 11, 2001. The attacks launched from within the United States in broad daylight against non-military targets and innocent civilians, followed by the intentional dispersal of the biological agent anthrax, ushered in an era of uncertainty and fear in this country unlike any in recent memory. The visible manifestations of this fear are still with us--concrete barriers and the closing of public spaces around public buildings, heightened security at airports and train stations subjecting people to invasive searches of their persons and belongings, the sudden, seemingly random appearance of …

Administering The Clean Water Act: Do Regulators Have "Bigger Fish To Fry" When It Comes To Addressing The Practice Of Chumming On The Chesapeake Bay?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The Chesapeake Bay is one of the country's most productive estuaries. However, for decades the health of the Bay has been declining due in large part to nutrification. Excessive nutrients encourage algal blooms, which lower dissolved oxygen and increase turbidity in the Bay's waters. More than 40% of the Bay's main stern is now dead largely as a result of this problem. The practice of chumming, the discarding of baitfish, usually menhaden, over the sides of fishing boats to attract game fish like striped bass, is contributing to the Bay's nutrification problem because the decomposing chum raises the waters biological …

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 …

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.

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 Federal “Claim” In The District Courts: Osborn, Verlinden, And Protective Jurisdiction, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In the title of his influential article, “The Federal ‘Question’ in the District Courts,” Professor Paul Mishkin reminded us that the phrase “federal question” is a misnomer as a description of the “arising under” jurisdiction of the district courts. The purpose of the “arising under” jurisdiction of the district courts is not solely, or even primarily, to resolve disputed questions of federal law, but to provide a hospitable forum for the vindication of federal rights. Such rights can be frustrated by an inhospitable forum not just through the misinterpretation of federal law, but through misinterpretation of state law or through …

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.

Public-Private Health Law: Multiple Directions In Public Health, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

No public law is more public than public health law. Its defining subject is the use of state power to control and prevent death and disease. Its primary institutions are a cluster of state actors, the governmental agencies that comprise the American public health "system.,, The system grew out of the eighteenth century boards of health that produced the beginnings of administrative law. Public health law is grounded on statutory provisions that authorize various forms of state action and on judicial decisions that resolve constitutional challenges to those actions.

Designing Interstate Institutions: The Example Of The Streamlined Sales And Use Tax Agreement, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article presents a case study in designing cooperative interstate institutions. It takes as its subject the Streamlined Sales and Use Tax Agreement ("SSUTA"), a recently-developed compact among the States now awaiting congressional ratification. The SSUTA's primary goal is to bring uniformity to the field of state and local sales taxation, a regime in which multi-jurisdictional sellers now confront thousands of different sets of rules. I predict here that the SSUTA as currently designed is unlikely to accomplish that goal, and attempt to suggest possible amendments that could improve its expected performance. From these efforts I extract larger lessons about …

Odious, Not Debt, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This article argues that the doctrine of Odious Debt, which has enjoyed a revival since the U.S. invasion of Iraq in 2003, frames the problem of odious debt in a way that excludes most of the problematic obligations incurred by twentieth-century despots. Advocacy and academic literature traditionally describe the odious debt problem as one of government contracts with private creditors. Most theories of sovereign debt key off the same relationship. But in the latest crop of cases, including Iraq, Liberia, and Nigeria, private creditors represent a small fraction of the old regime's debts. Most of the creditors are other governments …

A Nation Of Policyholders: Governmental And Market Failure In Flood Insurance, Adam F. Scales

MC Law Review

No abstract provided.

Kramer Vs. Kramer Revisited: A Comment On The Miller Commission Report And The Obligation Of Divorce Lawyers For Parents To Discuss Alternative Dispute Resolution With Their Clients, Andrew Schepard

Hofstra Law Faculty Scholarship

The 2006 Report of New York State's Matrimonial Commission to Chief Judge Kaye (commonly know as the Miller Commission Report) recommended that New York begin to incorporate alternative dispute resolution into the State's fragmented and adversarial divorce system. This Comment argues that it should have more strongly recommended that divorce lawyers be mandated to discuss alternative dispute resolution, particularly mediation, with parent-clients before filing suit.

The Comment begins by describing the advice given to a parent client in the movie Kramer vs. Kramer and argues that that advice constitutes zealous advocacy as famously described by Henry Lord Brougham in Queen …

A Default-Logic Paradigm For Legal Fact-Finding, Vern R. Walker

Hofstra Law Faculty Scholarship

This paper presents a visual framework for modelling complex legal reasoning — reasoning that integrates legal rules and policies with expert and non-expert evidence. The framework is based on a many-valued, predicate, default logic. The paper first visualizes the two sides of the rule-evidence interface: rule-based deductions and evidence evaluation. It then explores ways to visualize several dynamics around that interface, including dynamics concerning evidentiary relevance, findings of fact, process decision making about motions, policy-based reasoning about rules and relevant-factor reasoning. The paper then concludes with visualizing dynamics across multiple cases and briefly discusses one pathway by which new legal …

Civil Control Of The Military And Police In Ireland: The Armed Forces, Tom Clonan

Books/Book chapters

Independence and Civil War: Origins of Irish Defence Forces The Irish armed forces, known as the Permanent Defence Forces (PDF) or ‘Oglaigh na hEireann’ number approximately 10,000 personnel across the Naval Service, Army and Air Corps. The Defence Forces in Ireland play an active role domestically in ‘Aid to the Civil Power’ Operations or ATCP Ops with the Irish police force, An Garda Siochana. The Defence Forces are also active internationally in UN peacekeeping and peace enforcement operations in Europe, Asia, Africa and the Middle East. As an organisation, the Irish Defence Forces is a direct descendant of the Irish …

Silences And Peculiarities Of The Hamdan Opinions, Peter E. Quint

Faculty Scholarship

In this Essay, I would like to focus on what I call the two great “silences” of the majority opinion in the Hamdan case and also touch upon two peculiarities in the majority opinion and in the concurring opinion of Justice Kennedy.

Famous Trademarks And The Rational Basis For Protecting Irrational Beliefs, J. Shahar Dillbary

Articles

Contrary to the traditional view, this article argues that mega-brands are neither economic evils nor limited to imparting information about the products they adom. It also rejects the view that famous marks persuade "snobs" to "irrationally" pay more for the same physical product they could have purchased for less. Rather, it adopts the view that in purchasing a branded good, the consumer is actually purchasing a bundle of three prod- ucts: a physical product, information about the physical product, and an intangible product, such as fame, prestige, peace of mind, or a pleasant feel- ing. This article explores the demand …

Reinventing Appellate Jurisdiction, Adam N. Steinman

Articles

Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity. Although these critiques are well-founded, this Article reveals that, as applied in practice, federal courts have drawn sensible lines between interlocutory orders that are immediately appealable and those that are not. A limited category of interlocutory orders, primarily those rejecting immunities from suit, are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review. The doctrinal morass of the present framework, however, has obscured this basically sensible structure and has led to inefficient procedures for …

A Theory And Definition Of Public Health Law, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

I offer a brief excerpt from my book, Public Health Law: Power, Duty, Restraint. My definition of public health law follows, and the remainder of this excerpt offers a justification as well as an expansion of the ideas presented: Public health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain …

Interpreting And Enacting Statutes In The Constitution's Shadows: An Introduction, Bernard W. Bell

University of Dayton Law Review

Symposium: Enacting and Interpreting Statutes in the Constitution's Shadows

Governance By Mutual Benchmarking In Postal Markets: How State-Owned Enterprises May Induce Private Competitors To Observe Policy Goals, Peter Hettich

University of Dayton Law Review

No abstract provided.

Foreword: The Dangling Constitutional Conversation, Philip P. Frickey

University of Dayton Law Review

Symposium: Enacting and Interpreting Statutes in the Constitution's Shadows

Considering Global Democracy: An Introduction To The Symposium 'Envisioning A More Democratic Global System', Andrew L. Strauss

School of Law Faculty Publications

This introduction to the symposium "Envisioning a More Democratic Global System," held at Widener University School of Law in the spring of 2006, provides a conceptual overview of symposium papers published in Volume 13:2 of the Widener Law Review. The papers fall into two groups. As a reference point for understanding how the democratization of the international system can occur, the first group examines the process of democratization at the national level. The second group of papers forward and assess specific proposals for democratizing the global system with a particular emphasis on the proposal for a global parliament.

Papers discussed …

Same-Sex Marriage And Public School Curricula: Preserving Parental Rights To Direct The Education Of Their Children, Charles J. Russo

Educational Leadership Faculty Publications

No abstract provided.