Law Commons^™

Self-Defense And The Limits Of Wmd Intelligence, Matthew C. Waxman

Faculty Scholarship

During the 2008 presidential campaign, then-candidate Barack Obama stated: “Sometimes, the preventive use of force may be necessary, but rarely. The experience of Iraq underscores that often, perceived threats are not as real [as] they may seem, and our intelligence may be imperfect. But, when our intelligence is good and defensible we should not rule out the use of force.” This chapter examines ways of assessing legally whether that intelligence is sufficiently good and defensible. It argues that an objective reasonable necessity approach to WMD capability assessments can serve long-term peace and security objectives and, more specifically, how the law …

The Structure Of Terrorism Threats And The Laws Of War, Matthew C. Waxman

Faculty Scholarship

This article considers a major debate in the American and European counterterrorism analytic community – whether the primary terrorist threat to the West is posed by hierarchical, centralized terrorist organizations operating from geographic safe havens, or by radicalized individuals conducting a loosely organized, ideologically common but operationally independent fight against western societies – and this debate’s implications for both jus ad bellum and jus in bello. Analysis of how the law of armed conflict might be evolving to deal with terrorism should engage in more nuanced and sophisticated examination of how terrorism threats are themselves evolving. Moreover, the merits of …

Origin Myths, Contracts, And The Hunt For Pari Passu, Mark C. Weidemaier, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

Sovereign loans involve complex but largely standardized contracts, and these include some terms that no one understands. Lawyers often account for the existence of these terms through origin myths. Focusing on one contract term, the pari passu clause, this article explores two puzzling aspects of these myths. First, it demonstrates that the myths are inaccurate as to both the clause’s origin and the role of lawyers in contract drafting. Second, the myths often are unflattering, inaccurately portraying lawyers as engaged in little more than rote copying. The article probes this disjunction between the myths and lawyers’ actual practices and explores …

Rescuing Jerry From (Basic) Principles, Joseph Raz

Faculty Scholarship

I will say something on two or three related but distinct topics. First, something on the grounding of normative beliefs, a topic – as I see it – in moral epistemology, and then after a brief remark on explanation, something against a certain understanding of basic principles. My observations were prompted by reflection on Jerry’s desire to rescue justice from the facts.

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Alice Woolley, W. Bradley Wendel, William H. Simon, Stephen Pepper, Daniel Markovitz, Katherine R. Kruse, Tim Dare

Faculty Scholarship

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws?

Those papers, which are to be published in Legal Ethics, are compiled here, along with the question and background information with which the panelists were provided.

In Defense Of Feres: An Unfairly Maligned Opinion, Paul F. Figley

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s 1950 Feres v. United States decision held that when it enacted the Federal Tort Claims Act Congress did not intend to waive sovereign immunity for injuries to members of the military arising out of activity incident to their service. The Court’s decision was influenced by the long history of efforts to enact a general tort claims bill that would free Congress from the burden of processing claims against the government, as well as the case law, statutes, and procedures pertaining to service-members’ injuries prior to enactment of the Federal Tort Claims Act. This Article examines those influences …

Legislation That Isn't – Attending To Rulemaking's "Democracy Deficit", Peter L. Strauss

Faculty Scholarship

Philip Frickey's commitment to practical legal studies won my admiration early on in his career. In this welcome celebration of his extraordinary career, it seems fitting to essay something "practical" – to attempt a constructive approach to an enduring problem – that has some bearing on his lifelong attention to the problem of "interpretation." If it will not make the problem go away, perhaps it will provide a basis for understanding its inevitable tensions, and in that way will help us step past theoretical exegeses suggesting the possibility of simple answers.

Saving Up For Bankruptcy, Ronald J. Mann, Katherine Porter

Faculty Scholarship

Bankruptcy is a numbers game. Policymaking, public perception, and the scholarly literature are captivated with the number of annual bankruptcy filings, which hit one million in 2008. The number of annual bankruptcy filings has become a barometer of economic health, reflecting an implicit assumption that bankruptcy is a useful proxy for financial distress.

But at the level of the individual family, the causative relation between financial distress and bankruptcy filings is unclear. On the one hand, only a fraction of those in serious financial distress will ever file for bankruptcy. For example, a study by Michelle White examined a group …

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was …

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.

Mark Tushnet On Why The Constitution Doesn't Matter, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

User-Generated Content Sites And Section 512 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

This book chapter considers the liability of entrepreneurs of ‘user-generated content’ (UGC) sites. These immensely popular fora, such as YouTube and My Space, enable their participants to post and view a great variety of content, not all of it in fact generated by the posting user. The legislative compromise worked out between telecommunications providers and content owners in the 1998 ‘Digital Millennium Copyright Act’ provides the statutory framework, at once insulating the operators of UGC sites from debilitating copyright sanctions, while still affording meaningful relief to copyright owners. The statutory criteria to qualify for the section 512(c) safe harbor are …

Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth F. Emens, Berta E. Hernández-Truyol, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

A Social Movement History Of Title Vii Disparate Impact Analysis, Susan Carle

Scholarly Articles in Law Reviews & Journals

The U.S. Supreme Court’s recent opinion in Ricci v. DeStefano suggests trouble ahead for disparate impact analysis under Title VII of the Civil Rights Acts of 1964 and 1991. Commentators, too, have begun to question the policy bases for this doctrine. Part of the current tenuousness surrounding disparate impact analysis, which the Court first approved in its 1971 opinion in Griggs v. Duke Power Company, stems from assumptions that the EEOC pursued this theory as a last-minute, ill-conceived afterthought that was not in keeping with Congress’s intent when it passed Title VII in 1964. In this Article I use the …

State Sovereign Immunity And The Roberts Court, Stephen I. Vladeck

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Outsiders Inside The Beltway: Latcrit Xiv - Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime, Anthony E. Varona

Scholarly Articles in Law Reviews & Journals

A substantive foreword to the symposium book for the Fourteenth Annual Latino/Latina Critical Legal Theory Scholarship Conference hosted by the American University Washington College of Law. The foreword includes information about the conference theme, its planning and execution, and includes excerpts from the presentations of a number of prominent plenary and keynote speakers, including Congresswoman Linda Sanchez (D-CA), Caroline Fredrickson (the executive director of the American Constitution Society for Law and Policy), Robert Raben (the president of the Raben Group), Jarrett Barrios (the president of the Gay and Lesbian Alliance Against Defamation), Prof. Jenny Rivera (professor of law and director …

Of Lawyers, Leaders, And Returning Riddles In Sovereign Debt: An Introduction, Anna Gelpern

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, And Costs Lives (Introduction), Michael A. Heller

Faculty Scholarship

Twenty-five new runways would eliminate most air travel delays in America; fifty patent owners are blocking a major drug company from creating a cancer cure; 90 percent of our broadcast spectrum sits idle while American cell phone service suffers. These problems have solutions that can jump-start innovation and help save our troubled economy. So, what's holding us back?

The Emotional State And Localized Norms: Reply Piece, Clare Huntington

Faculty Scholarship

I am grateful to Professor Fineman for her probing and engaged response to my Article. I will take this opportunity to make explicit some of the implicit assumptions of the Article that Professor Fineman identifies as worthy of elaboration.

Familial Norms And Normality, Clare Huntington

Faculty Scholarship

Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is …

A Lucky Child: A Memoir Of Surviving Auschwitz As A Young Boy, Lori Fisler Damrosch

Faculty Scholarship

Many readers of this Journal would readily identify the young boy in lederhosen, hands tightly clasped by his mother, who is in turn enfolded in the father's embrace – all three smiling on what is perhaps the child's third birthday – in the cover photograph of the American edition of the book under review. In this memoir he is Tommy, Tom, Tomek, or Tommyli; in later life he is known to us (and recognized worldwide) as Thomas Buergenthal, judge of the International Court of justice since 2000 and honorary president of the American Society of International Law from 2001 to …

How Should Colleges And Universities Respond To Peer Sexual Violence On Campus? What The Current Legal Environment Tells Us, Nancy Chi Cantalupo

Georgetown Law Faculty Publications and Other Works

Over the last decade or so, various legal schemes such as the statutes and court or agency enforcement of Title IX and the Clery Act have increasingly recognized that certain institutional responses perpetuate a cycle of nonreporting and violence. This paper draws upon comprehensive legal research conducted on how the law now regulates school responses to campus peer sexual violence to show that schools face much greater liability from failing to protect the rights of campus peer sexual violence survivors than of any other group of students, including alleged assailants. By encouraging their institutions to develop more victim-centered responses to …

An Autobiography Of A Digital Idea: From Waging War Against Laptops To Engaging Students With Laptops, Diana R. Donahoe

Georgetown Law Faculty Publications and Other Works

This is an autobiographical account of my attempt to bridge the digital divide to meet students' changing needs. When I first began teaching at Georgetown University Law Center in 1993, I employed many traditional teaching techniques and used printed textbooks. However, laptops soon began peppering my classroom; at first there were only a few, and then suddenly almost every student was hiding behind a laptop. I noticed that my students were looking down at their screens, typing furiously, instead of watching me while I discussed my material written on the blackboard or projected overhead. When I realized that I was …

Attention Must Be Paid: Commercial Speech, User-Generated Ads, And The Challenge Of Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, …

Adaptation To The Health Consequences Of Climate Change As A Potential Influence On Public Health Law And Policy: From Preparedness To Resilience, Lindsay F. Wiley

Georgetown Law Faculty Publications and Other Works

Because the health effects of climate change are likely to be significant and far-reaching, a key component of climate change adaptation will be our public health infrastructure. Perhaps counter-intuitively, recent emphasis in public health law on preparedness for extraordinary events may be to the detriment of our ability to cope with the health impacts of climate change. While existing emergency preparedness law will necessarily be an important backdrop for health-focused climate change adaptation efforts (especially with regard to natural disasters and infectious disease outbreaks), the focus on emergency preparedness in recent years does not necessarily situate us well for handling …

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi Short, Michael W. Toffel

Georgetown Law Faculty Publications and Other Works

Using data from a sample of U.S. industrial facilities subject to the federal Clean Air Act from 1993 to 2003, this article theorizes and tests the conditions under which organizations’ symbolic commitments to self-regulate are particularly likely to result in improved compliance practices and outcomes. We argue that the legal environment, particularly as it is constructed by the enforcement activities of regulators, significantly influences the likelihood that organizations will effectively implement the self-regulatory commitments they symbolically adopt. We investigate how different enforcement tools can foster or undermine organizations’ normative motivations to self-regulate. We find that organizations are more likely to …

Implementing Public Health Regulations In Developing Countries: Lessons From The Oecd Countries, Lawrence O. Gostin, Emily A. Mok, Monica Das Gupta, Max Levin

Georgetown Law Faculty Publications and Other Works

The enforcement of public health standards is a common problem in many developing countries. Public health agencies lack sufficient resources and, too often, enforcement mechanisms rely on slow and erratic judicial systems. These limitations can make traditional public health regulations difficult to implement. In this article, we examine innovative approaches to the implementation of public health regulations that have emerged in recent years within OECD countries. These approaches aim to improve compliance with health standards, while reducing dependence on both the legal system and the administrative resources of public health agencies.

This article begins by discussing some traditional forms of …

National And Global Responsibilities For Health, Lawrence O. Gostin, Mark Heywood, Gorik Ooms, Anand Grover, John-Arne Røttingen, Wang Chenguang

Georgetown Law Faculty Publications and Other Works

Preventable and treatable injuries and diseases are overwhelming sub-Saharan Africa, the Indian subcontinent, and other impoverished areas of the world. Why are health outcomes among the world’s poor so dire after the first decade of the Millennium Development Goals (MDGs) and despite a quadrupling of international health assistance over the past two decades? We believe that this dynamic can change by establishing clearer understandings of, and forging consensus around and governance structures to support, national and global responsibilities to improve global health.

With the goal of a new post-MDG global health paradigm, we are establishing the Joint Action and Learning …

Rights Talk And Patient Subjectivity: The Role Of Autonomy, Equality And Participation Norms, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Patients themselves have transformed the role of the patient in the health care system, making it far more complex than it ever has been before. As a result, the conceptual root of our contemporary understandings of “patient” is an assumption of autonomous subjectivity, i.e., of an individual aware of and capable of acting on her choices for medical care. The Symposium on Patient-Centered Health Law and Ethics of which this Article is a part considers the most recent stage in this evolution of meanings: the concept of patient-centeredness, with its implication of provider deference to the patient’s perspective. Throughout the …

Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …