Law Commons^™

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.

This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in …

The Ethics Of Melancholy Citizenship, Robert L. Tsai

Scholarly Articles in Law Reviews & Journals

No abstract provided.

After Frustration: Three Cheers For Chandler V. Webster, Victor P. Goldberg

Faculty Scholarship

Performance of a contract can be excused by a number of circumstances, notably impossibility, impracticability, and frustration. When performance is excused there remains the question of how to treat any payments or expenditures that were made prior to the occurrence of the contract-frustrating event. In Chandler v. Webster, the English courts decided over a century ago that the parties should be left where they were at the time of the frustrating event. Forty years later that holding was overturned so that now recovery might be had both for restitution of payments made prior to the event and for expenditures …

Proving Prejudice, Post-Padilla, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Why Misdemeanors Matter: Defining Effective Advocacy In The Lower Criminal Courts, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

Most individuals accused in our nation's criminal courts are not charged with murder, rape, drug sales, or even less serious felonies. The vast majority of charges are in the lower courts, for misdemeanors such asmarijuana possession, driving with a license suspension for failure to pay tickets, assault, disorderly conduct, or public intoxication. Misdemeanor adjudications have exploded in recent years, with one recent study estimating that the volume of misdemeanor cases nationwide has risen from five to more than ten million between 1972 and 2006. At the same time, violent crime and the number of felony cases across the country have …

In Defense Of Deterrence, Andrew Popper

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than 10 years later. This rise has been a notable component of the city’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “stop, question, and frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana enforcement. These …

Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard

Faculty Scholarship

This chapter responds to a chorus of commentary about the potential for conflict between the international investment law regime and an array of national and international actions being undertaken to mitigate and adapt to global climate change. Contrary to conventional wisdom, while some climate-friendly regulations may indeed be facially incompatible with the obligations imposed on states by typical international investment agreements (IIAs), many climate policies – especially those related to clean energy finance and technology transfer – involve principles common to foreign investment law and are largely compatible with that regime. Moreover, pending the unlikely negotiation of a single global …

Contract, Uncertainty, And Innovation, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Faculty Scholarship

Contract today increasingly links entrepreneurial innovations to the efforts and finance necessary to transform ideas into value. In this chapter, we describe the match between a form of contract that “braids”1 formal and informal contractual elements in novel ways and the process by which innovation is pursued.

Public Sex, Same-Sex Marriage, And The Afterlife Of Homophobia, Katherine M. Franke

Faculty Scholarship

The summer of 2011 marked an important turning-point in the geography and politics of sex: public sex, previously a domain dominated by the specter of a hypersexualized gay man, became the province of the irresponsible, foolish, and self-destructive heterosexual man, such as Anthony Weiner. Meanwhile, homosexuals were busy domesticating their sexuality in the private domain of the family. Just as hetero-sex shamefully seeped out into the open, homo-sex disappeared from view into the dignified pickets of private kinship. In this essay I examine the panic that unfolded in connection with Representative Weiner’s tweets as a kind of afterlife of homophobia; …

The Curious Relationship Of Marriage And Freedom, Katherine M. Franke

Faculty Scholarship

This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are …

Attachments And Associated Reasons, Joseph Raz

Faculty Scholarship

The paper will unfold in 5 parts dealing with five questions: first, does the partiality of attachments present an obstacle to their being or giving practical reasons? Second, given a value-based approach to practical reasons, can universal values generate reasons that are specific to their subjects, reasons – say – towards my friends that only I have? Third, do attachments affect what we do independently of any reasons that they provide? Fourth, in what ways do attachments constitute or provide normative reasons, and briefly, how do attachment-related reasons relate to other practical reasons? Finally, I turn to the question of …

The Institutional Configuration Of Deweyan Democracy, William H. Simon

Faculty Scholarship

After more than two decades of effort to recover and adapt John Dewey’s thought for a reformed liberal politics, the institutional implications of his ideas remain elusive. This essay argues that a distinctive set of modern business practices and an incipient public policy architecture embody key precepts of Dewey’s political theory. The practices and architecture have developed independently of Dewey’s ideas, but they elaborate the ideas implicitly, and they are illuminated by them.

The New Habeas Revisionism, Stephen I. Vladeck

Scholarly Articles in Law Reviews & Journals

There is relatively little in the Constitution’s drafting history or ratification debates to illuminate the intended meaning of the Suspension Clause, and what it specifically protects by preserving “the Privilege of the writ of Habeas Corpus” except in cases where habeas is properly suspended. Most jurists and commentators at least seem to agree on the constitutional floor - that, as Justice Stevens put it in 2001, “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” But even that limited point of consensus only begs a separate question: what was the scope of the writ …

Arrest Efficiency And The Fourth Amendment, Song Richardson

Scholarly Articles in Law Reviews & Journals

In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do so. Largely absent from this important conversation, however, are Fourth Amendment scholars. This void is surprising because the lessons of implicit social cognition can contribute much to understanding police behavior, especially as it relates to arrest efficiency or hit rates - the rates at which police find evidence of criminal activity …

Lawfare: A War Worth Fighting, Paul Williams

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Transparency And The Expansion Of The Wto Mandate, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Coming Clean And Cleaning Up: Does Voluntary Self-Reporting Indicate Effective Self-Policing?, Michael W. Toffel, Jodi Short

Georgetown Law Faculty Publications and Other Works

Administrative agencies are increasingly establishing voluntary self-reporting programs both as an investigative tool and to encourage regulated firms to commit to policing themselves. We investigate whether self-reporting can reliably indicate effective self-policing efforts that might provide opportunities for enforcement efficiencies. We find that regulators used self-reports of legal violations as a heuristic for identifying firms that are effectively policing their own operations, shifting enforcement resources away from voluntary disclosers. We also find that firms that voluntarily disclosed regulatory violations and committed to self-policing improved their regulatory compliance and environmental performance, suggesting that the enforcement relief they received was warranted. Collectively, …

Law As Asymmetric Information: Theory, Application, And Results In The Context Of Foreign Direct Investment In Real Estate, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

In his seminal 1970 article on lemon markets, George Akerlof posited the possibility of market failure in the presence of asymmetric information regarding a good’s value. In the intervening four decades, the importance of accurate valuation information has grown as transnational trade has boomed. The aim of the instant article is to assess the potential impact on transnational trade of asymmetric information regarding the legal attributes of a given good. Inaccurate or asymmetric information regarding relevant legal attributes may give rise to the same problem of market failure that Akerlof initially posited. If buyers are unsure of the ownership of …

Democracy Promotion In The Obama Administration: An Opportunity To Match Action To Rhetoric, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

Law's Visual Afterlife: Violence, Popular Culture, And Translation Theory, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In Walter Benjamin’s essay, “The Task of the Translator,” Benjamin argues that translations enable a work’s afterlife.  Afterlife is not what happens after death but what allows a work (or event or idea) to go on living and to evolve over time and place and iteration.  In its afterlife, the original is transformed and renewed.  In this piece I explore film’s visual translation of law and the role film plays in law’s afterlife.  Film translates law not by translating from one language to another, but by translating between media and discourses.  The cultural-critical lens of translation highlights the discursive similarities …

Risk Taking And Force Protection, David Luban

Georgetown Law Faculty Publications and Other Works

This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own.

The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while …

Doing Too Much: The Standard Deduction And The Conflict Between Progressivity And Simplification, John R. Brooks

Georgetown Law Faculty Publications and Other Works

In U.S. federal income tax, the standard deduction, along with the personal exemptions, provides taxpayers with a minimum amount of untaxed income, effectively creating a "zero bracket amount." For historical and political reasons, however, the standard deduction also operates as a simplified substitute for the itemized deductions, such as the deductions for extraordinary medical expenses, charitable contributions, and home mortgage interest. This seemingly reasonable compromise in fact leads to substantial, and surprising, conceptual complexity. In particular, close analysis of each of the two roles shows that their effects, and related criticisms, are often contradictory, which in turn makes it difficult, …

Health Insurance Reform And Intimations Of Citizenship, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This article considers the implications of the Patient Protection and Affordable Care Act (PPACA) for social meanings of civic belonging in American society and for possible new forms of individual engagement with the health care system. Once fully implemented, PPACA will have many of the governance characteristics of other social insurance systems, in that it will define membership in a collective undertaking, establish a mechanism for collective security against a shared risk, and channel, incentivize and penalize specific behaviors. The article considers the extent to which PPACA has the potential to also produce new narratives and understandings of social solidarity …

The Anti-Empathic Turn, Robin West

Georgetown Law Faculty Publications and Other Works

Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.

Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges …

The Post-Citizens United Fantasy-Land, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

First, a bouquet for the illuminating facts presented by Professors Wert, Gaddie, and Bullock. They make dramatically clear how minuscule independent spending by corporate PACs has been (that is, those PACs’ direct spending as distinct from support by those PACs or their corporate sponsors for spending by intermediaries like the Chamber of Commerce). Their showing is borne out by experience this year: corporate support for campaigns is almost all hidden, flowing through intermediaries, which is why getting effective disclosure is more important than ever, as the Court clearly recognizes (We probably owe much to Justice Kennedy for the fact that …

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

The Siren Song Of History: Originalism And The Religion Clauses, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more …

Towards Symmetry In The Law Of Branding, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Companies sometimes want to abandon an old identity and rebrand with a new one. Trademark law probably does not have much to say about rebranding in itself. But we should be careful about how we think about rebranding and other undisclosed source relationships because, if not handled properly, law’s recognition of such techniques could end up reinforcing trademark owners’ ability to deter competition and control free speech.

Scary Monsters: Hybrids, Mashups, And Other Illegitimate Children, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Human creativity, like human reproduction, always makes new out of old in ways that copyright law has not fully recognized. The genre of vidding, a type of remix made mostly by women, demonstrates how creativity can be disruptive, and how that disruptiveness is often tied to ideas about sex and gender. The most frightening of our modern creations—the Frankenstein’s monsters that seem most appropriative and uncanny in light of old copyright doctrine—are good indicators of what our next generation of creativity may look like, especially if creators’ diversity in gender, race, and economic background is taken into account.