Law Commons^™

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.

Symposium: Envisioning A More Democratic Global System: On The First Branch Of Global Governance, Andrew L. Strauss

School of Law Faculty Publications

For those interested in democratizing global governance, the threshold question of whether to pursue a popularly elected global parliament is often one of political feasibility. This article compares the potential achievability of four different strategic approaches to initiating a global parliament: Amendment of the United Nations Charter; Creation by the United Nations General Assembly as a Subsidiary Organ; Civil Society Organized Elections; And Interstate Treaty Process. The article concludes with a short discussion of how a global parliament could contribute to a more peaceful global order.

Erie's Constitutional Source, Bradford R. Clark

GW Law Faculty Publications & Other Works

The constitutional rationale of Erie Railroad Co. v. Tompkins has remained elusive for almost seventy years. Three decades ago, Paul Mishkin argued in a brief but influential article that Erie rests on "constitutional principles which restrain the power of the federal courts to intrude upon the states' determination of substantive policy in areas which the Constitution and Congress have left to state competence." Professor Mishkin wrote his article in response to John Hart Ely's insightful analysis of Erie published earlier the same year. Mishkin understood Erie as imposing a constitutional restraint on the federal courts, but read Ely as treating …

A New Wto Paradigm For Trade And The Environment, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article provides an overview of the “trade and environment” interface in the WTO and proposes a new paradigm for making progress. The article reviews recent developments in WTO adjudication and negotiations and examines the institutional interplay of international trade and biosafety with particular reference to the Cartagena Protocol on Biosafety. The article also points to several pro-environmental initiatives that could be taken by the WTO.

Part I provides a brief review of the history of environment linkage in trade policy, beginning in 1923. Part II offers a general survey of WTO rules and policies with implications for the environment. …

Normative Nominalism: The Paradox Of Egalitarian Law In Inegalitarian Cultures - Some Lessons From Recent Latin American Historiography, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This essay is a contribution to the discussion of the conflict that often exists between legal norms and legal practice in Latin America. It examines the conflict between equality under the law as a legal and constitutional norm in Latin America and the persistence of strong inequality as a social reality in Latin America. The essay examines this tension through a look at recent Latin American legal historiography. Essays include issues of race, class and the law in the nineteenth century Brazilian Empire, race and the law in early 20th century Cuba and Brazilian labor law in the middle and …

Beyond Liability: Rewarding Effective Gatekeepers, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Article adds to the emerging literature on rewards to promote effective capital market gatekeeping. Capital market gatekeeping theory traditionally relies heavily on threats of legal liability for failure to perform legally mandated functions (along with a presumed constraint imposed by reputation effects). The ineffectiveness of many gatekeepers in the past decade revealed limitations of the liability strategy and yet reforms continue to emphasize legal duties and liability for gatekeepers. This emphasis also has the negative side-effect of discouraging gatekeepers from willingness to perform desired functions - such as to detect for fraud. Using rewards can induce gatekeepers to perform …

A Prescription To Retire The Rhetoric Of 'Principles-Based Systems' In Corporate Law, Securities Regulation And Accounting, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Article corrects widespread misconception about whether complex regulatory systems can be fairly described as either "rules-based" or "principles-based" (also called "standards-based"). Promiscuous use of these labels has proliferated in the years since the implosion of Enron Corp. While the concepts of rules and principles (or standards) are useful to classify individual provisions, they are not scalable to the level of complex regulatory systems. The Article uses examples from corporate law, securities regulation and accounting to illustrate this problematic phenomenon before turning to a series of possible explanations for the widespread use of these misleading labels. The piece contributes to …