Law Commons^™

Advancing Social Justice As Lawyers: And How Social Media Can Be Part Of Your Effort, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

Commencement Address to the 2012 Graduating Class of UCLA Law, May11, 2012 at UCLA Law School.

Professor Chai Feldblum's theme is how you can be part of advancing social justice as lawyers–-and how the time that people might say you are “wasting” on social media (be it Twitter or FB or whatever you may use) can, in fact, be an essential part of social justice work.

Supreme Court Institute Annual Report, 2011-2012, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the 2011-2012 academic year--corresponding to the U.S. Supreme Court’s October Term (OT) 2011--the Supreme Court Institute (SCI) provided moot courts for advocates in over 94% of the cases heard by the Court this Term and offered over a dozen programs related to the Supreme Court. All SCI moot courts held in OT 2011, listed by sitting and date of moot, and including the name and affiliation of each advocate and the number of student observers, follows the narrative portion of this report.

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue …

The Taint Of Torture: The Roles Of Law And Policy In Our Descent To The Dark Side, David Cole

Georgetown Law Faculty Publications and Other Works

Was the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author …

A Journey From The Heart Of Apartheid Darkness Towards A Just Society: Salient Features Of The Budding Constitutionalism And Jurisprudence Of South Africa, Dikgang Moseneke

Philip A. Hart Memorial Lecture

On April 4, 2012, Deputy Chief Justice Dikgang Moseneke of the Republic of South Africa delivered the Georgetown Law Center’s thirty-second annual Philip A. Hart Lecture: “A Journey from the Heart of Apartheid Darkness towards a Just Society: Salient Features of the Budding Constitutionalism and Jurisprudence of South Africa.”

Moseneke earned a BA in English and political science, as well as a B Juris degree from University of South Africa and later completed an LLB. Justice Moseneke began his professional career in 1976 as an attorney’s clerk in Pretoria. In 1978 he was admitted and practiced for five years as …

Against The New Maternalism, Naomi Mezey, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

The biggest challenge for sex equality in the 21st Century is to dismantle inequality between women and men’s family care responsibilities. American law has largely accomplished formal equality in parenting by doing away with explicit gender classifications, along with many of the assumptions that fostered them. In a dramatic change from the mid-20th Century, law relating to family, work, civic participation and their various intersections is now virtually all sex-neutral. As the Supreme Court’s 2003 decision in Nevada Department of Social Services v. Hibbs demonstrates, both Congress and the Court have accepted the feminist critique of sex roles and stereotyping …

Where To Begin? Training New Teachers In The Art Of Clinical Pedagogy, Wallace J. Mlyniec

Georgetown Law Faculty Publications and Other Works

Legal educators and the legal academy have long made the mistaken assumption that new teachers have an intuitive grasp of teaching methodology based on their experiences as students, and that therefore they can begin and continue teaching throughout their careers without any understanding of teaching methodology. Clinical teachers in particular face unique pedagogical challenges relating to class goals, supervisory methods, feedback, and grading. These challenges are magnified by the existence of clients and by the need to engage with students regarding the ethics of legal practice and cultural difference.

This article attempts to set forth some of the critical questions …

Hard, Soft, And Embedded: Implementing Principles On Promoting Responsible Sovereign Lending And Borrowing, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This paper, prepared for UNCTAD’s initiative on responsible sovereign lending and borrowing, considers concrete strategies for implementing the Principles. It draws on studies in soft law and new governance, and on the recent experience in promoting best practices in international finance, including project finance, extraction revenue management, foreign aid, sovereign investment, and sovereign borrowing in the capital markets. It recommends maintaining the current non-binding character of the Principles, while embedding implementation in multi-stakeholder arrangements for ongoing disclosure, assessment, interpretation, and adaptation. This strategy has the best chance of changing behavior in sovereign lending and borrowing by creating constituencies for implementation …

Libya: A Multilateral Constitutional Moment?, Catherine Powell

Georgetown Law Faculty Publications and Other Works

The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a …

To Perform Or Pay Damages, Gregory Klass

Georgetown Law Faculty Publications and Other Works

In The Myth of Efficient Breach: New Defenses of the Expectation Interest, Daniel Markovits and Alan Schwartz argue that contractual promises between sophisticated parties are best interpreted as disjunctive promises to perform or pay damages. They further argue that this dual performance hypothesis answers moral critics of the expectation remedy. This comment makes three claims about Markovits and Schwartz's argument. First, although the dual performance hypothesis is supported by Markovits and Schwartz's instrumentalist model, they do not have a good argument that it is empirically correct -- that it is the best interpretation of what sophisticated parties actually intend. …

Healthcare Reform Hangs In The Balance, Lawrence O. Gostin

O'Neill Institute Papers

In this timely new briefing, Professor Lawrence O. Gostin, University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University writes:

Prior to Tuesday’s arguments, I believed that the Supreme Court would uphold the health insurance purchase mandate by a comfortable margin. But now I believe that health care reform hangs in the balance. Here are the key arguments on which the future of President Obama’s health care reform depends: a greater freedom, cost-shifting, the health care market, acts versus omissions, limiting principles, the population-base approach, and what is necessary and proper. If the Court strikes …

Animus Thick And Thin: The Broader Impact Of The Ninth Circuit Decision In Perry V. Brown, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This essay is a response to an article by: Eskridge Jr., William N., The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality, in 64 Stan. L. Rev. Online 93 (2012).

This essay examines the impact of Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the first appellate federal court decision on the constitutional validity of marriage exclusion laws. The author argues that the major contribution of the Perry decision is to illuminate the meaning of animus, a term that is sharply contested in Equal Protection jurisprudence, and to explicate its relationship to standards of …

Why The Affordable Care Act's Individual Purchase Mandate Is Both Constitutional And Indispensable To The Public Welfare, Lawrence O. Gostin

O'Neill Institute Papers

Integral to the Affordable Care Act's (ACA’s) conceptual design is the individual purchase mandate, which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Despite the vociferous opposition, the mandate is the most “market-friendly” financing device because it relies on the private sector. Ironically, less market-oriented reforms such as a single-payer system clearly would have been constitutional.

It is common sense for everyone to purchase health insurance and thus gain security against the potentially catastrophic costs of treating a serious illness or injury. However, Congress’ method of ensuring that everyone has …

Be Careful What You Wish For: Changing Doctrines, Changing Technologies And The Lower Cost Of War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The collective security structure created by the U.N. Charter is becoming shakier than ever, and two recent trends pose particular challenges to Charter rules on the use of force. The first trend involves a normative shift in understandings of state sovereignty, and the second trend involves improvements in technology--specifically, the rapid evolution of unmanned aerial vehicles, precision weapons, and surveillance technologies. Each trend on its own raises difficult issues. Together, they further call into question international law’s ability to meaningfully constrain the use of force by states.

The Ninth Circuit's Perry Decision And The Constitutional Politics Of Marriage Equality, William N. Eskridge

Georgetown Law Faculty Publications and Other Works

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Proposition 8 intended that gay …

On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit, Brief For Private Petitioners On Severability, National Federation Of Independent Business, Et Al., V. Kathleen Sebelius, Et Al., State Of Florida, Et Al., V. Department Of Health And Human Services, Et Al., Nos. 11-393, 11-400 (U.S. Jan. 6, 2012), Randy E. Barnett

U.S. Supreme Court Briefs

No abstract provided.

Supreme Court Of The United States, October Term 2011 Preview, Update: January 3, 2012, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Developing Attorneys For The Future: What Can We Learn From The Fast Trackers?, Lori Berman, Heather Bock, Juliet R. Aiken

CSLP Papers & Reports

Leaders in law firms tend to be those attorneys who thrive in a law firm environment from the beginning—successful associates who become successful partners. Later, they are asked to be the leaders of practice areas, committees and, ultimately, part of senior management. While high-performing associates may not be formally promoted to leadership positions for some time, it is important to understand what makes them—as young associates—stand out from their peers. Who are these future leaders, and what qualities predict their advancement in a law firm environment? These are the questions we set out to explore.

To date, little empirical work …

Senses Of Sen: Reflections On Amartya Sen’S Ideas Of Justice, César Arjona, Arif A. Jamal, Carrie Menkel-Meadow, Victor V. Ramraj, Francisco Satiro

Faculty Papers & Publications

This review essay explores how Amartya Sen’s recent book, The Idea of Justice, is relevant and important for the development and assessment of transnational theories and applications to transnational justice and legal education programs. The essay captures a trans-jural dialogue of multinational scholars and teachers, discussing Sen’s contributions to moral justice theory (criticizing programs for “transcendental institutionalism” (like Rawlsian theory) and instead focusing on “comparative broadening” including empirical, relative, and comparative assessments of programs to ameliorate injustice in the world in its comparative concreteness (as in Indian social justice theory and Adam Smith’s Theory of Moral Sentiments and related …

A Risky Business: Generation Of Nuclear Power And Deepwater Drilling For Offshore Oil And Gas, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Government regulation and licensing of industrial activities that create the possibility of catastrophic risk reflect “a political value judgment that these activities provide a social benefit that is greater than the social cost of the risks that they cause.” However, when a catastrophic accident occurs, the cost-benefit evaluations underlying the value judgment that authorized the activity may need to be rethought. Social rethinking is especially warranted when the accident could have been prevented had either the industry or the government more seriously assessed the risk of a catastrophic event and implemented precautionary steps to avoid it. This was the conclusion …

The Coming Water Crisis: A Common Concern Of Mankind, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

This essay argues that fresh water, its availability and use, should now be recognized as ‘a common concern of humankind’, much as climate change was recognized as a ‘common concern of humankind’ in the 1992 United Nations Framework Convention on Climate Change, and conservation of biodiversity was recognized as a ‘common concern of humankind’ in the 1992 Convention on Biological Diversity. This would respond to the many linkages between what happens in one area with the demand for and the supply of fresh water in other areas. It would take into account the scientific characteristics of the hydrological cycle, address …

The Battle Over Taxing Offshore Accounts, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

The international tax system is in the midst of a contest between automatic information reporting and anonymous withholding models for ensuring that nations have the ability to tax offshore accounts. At stake is the extent of many countries’ capacity to tax investment income of individuals and profits of closely held businesses through an income tax in an increasingly financially integrated world.

Incongruent initiatives of the European Union, the Organisation for Economic Cooperation and Development (OECD), Switzerland, and the United States together represent an emerging international regime in which financial institutions act to facilitate countries’ ability to tax their residents’ offshore …

Institutionalizing Democracy In Africa: A Comment On The African Charter On Democracy, Elections And Governance, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article provides an exegesis of the recently entered-into-force African Charter on Democracy, Elections and Governance. Democracy has a decidedly mixed history in Africa and, despite a concerted effort by the African Union (AU), it has made only halting inroads in those states that are nondemocratic or struggling to consolidate democracy. That may change as more states ratify and implement the Charter, a comprehensive regional attempt to promote, protect, and consolidate democracy that entered into force in February 2012. This Charter, the culmination of two decades of African thinking on how democracy should develop on the continent, represents the AU’s …

Judulang V. Holder And The Future Of 212(C) Relief, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, a case addressing the Board of Immigration Appeals’ use of the comparable grounds approach for determining eligibility for relief under former section 212(c) of the Immigration and Nationality Act. The Court held that this approach was arbitrary and capricious under the Administrative Procedure Act, and remanded for the agency to determine a new way for determining the eligibility of deportable aliens for 212(c) relief. The purpose of this article is to place the Court’s decision in its proper historical context and to chart the …

Can An Old Dog Learn New Tricks? Applying Traditional Corporate Law Principles To New Social Enterprise Legislation, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

Seven U.S. states have recently adopted the benefit corporation or the flexible purpose corporation—two novel corporate forms intended to house social enterprises, i.e., those ventures that pursue social and environmental missions along with profits. And yet, these corporate forms are not viable or sustainable if they do not attract social entrepreneurs or social investors due to the lack of understanding and inquiry into how traditional corporate law principles will be applied to them. This article begins this necessary examination. As a first approach, this article assesses shareholder primacy and the shareholder wealth maximization norm in the context of the sale …

Train Wreck: The U.S. Violation Of The Chemical Weapons Convention, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under …

Alien Tort Claims And The Status Of Customary International Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peńa-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was …

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

Response: The Death Of The Bisexual Saboteur, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

Professor Glazer offers us, in Sexual Reorientation, an appealing and intuitive way to deal with the difficulty of bisexual identity, an identity that has always fit uneasily and sometimes quite unhappily in the LGBT rights movement. If the principal problem of bisexuality is its very temporal changeability, its tendency to dissolve into heterosexuality or homosexuality depending on the gender of one's sexual partner, then Glazer's solution is elegant. She proposes that we bifurcate (so to speak) sexual orientation into two subcategories and acknowledge for everyone both a general and a specific orientation. General orientation "is the sex toward which …

Keynote Address: 14th Annual Conference On Litigating Takings Challenges To Land Use And Environmental Regulations, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Keynote address to the 14th Annual Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations, November 18, 2011 at Georgetown University Law School.

This conference explores the regulatory takings issue as it relates to land use and environmental regulation. The conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues raised by recent decisions and pending court cases. Some of the topics to be discussed include takings claims generated by major flooding events in the Mississippi River, including Hurricane Katrina and the Mississippi floods of 2011, the takings issues raised by …