Law Commons^™

In Defense Of Punishment Theory, And Contra Stephen: A Reply To Degirolami, Chad W. Flanders

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Marc DeGirolami’s searching recent essay in this Journal is — appropriately enough — hard to categorize, or even to summarize. It aims to criticize the rise of “theory” in the academic study of criminal punishment, but it does not stop at merely being critical. Rather, it attempts to revive the thought of James Fitzjames Stephen,and also to urge a better way of looking at the study of punishment: one that is more historically oriented as well as more pluralist. Stephen’s thought, DeGirolami complains, has been misunderstood and flattened, andit is our loss. We have lost not only the views of …

Decoupling Employment, Marcia L. Mccormick

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The protected class approach to employment discrimination has not solved the problem of discrimination or of a just distribution of resources. Not only do race and sex prejudice continue to exist, but material and subjective disadvantage continues to be strongly linked to race and sex. While our laws have made social changes, progress on those changes stalled in the 1980s. Some might even say that the protected class approach to discrimination has actually entrenched inequality more deeply into our social fabric.

This Article seeks a purpose-driven approach to finding solutions to the problems of discrimination, asking why it is that …

Workplace Reform In A Jobless Recovery, Marcia L. Mccormick

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In 2012, the United States was recovering from a recession and policy makers were debating how to solve the country’s economy. This essay looks at the labor and employment reforms (or lack thereof) of President Obama’s first term, and the differing views of the role of government in creating jobs. The article challenges us to think beyond the two solutions commonly discussed: de-regulation and a “New Deal” program.

There are ways current lawmakers could come together to help protect jobs. Some of the solutions offered by the article include using automatic contribution plans, promoting part-time work, and giving employees more …

Incorporating Litigation Perspectives To Enhance The Business Associations Course, Ann M. Scarlett

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This Article discusses having students in a Business Associations course think about the potential risks of a business decision, including consideration of the multiple perspectives that might produce litigation, as a method for enhancing students understanding of the new legal norms for businesses and the process for advising businesses.

Looking At Regional Trade Agreements Through The Lens Of Gender, Constance Z. Wagner

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This article focuses on an unresolved issue within international trade law and policy, namely whether there is a need to consider gender-differentiated impacts of trade agreements and if so, how such impacts should be addressed. The author argues in favor of a gender aware approach to trade, discussing this topic within the context of regional trade agreements (“RTAs”), which are being used increasingly as a route to economic integration among nations. While there is evidence of gender-differentiated impacts of trade liberalization, there has been little progress made in advancing an agenda to address gender issues at the level of multilateral …

Breaking The Cycle Of “Unequal Treatment” With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah A. Yearby

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Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 (“Title VI”) and the election of an African-American President. Both of these events held the promise of equality, yet the promise has never been fulfilled. Now, many hail the passage of the Patient Protection and Affordable Health Care Act (“ACA”) as the biggest governmental step in equalizing access to health care because it has the potential to increase minority access to health …

The Post-Revolutionary Period In Corporate Law: Returning To The Theory Of The Firm, Matthew T. Bodie

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Law and economics revolutionized the study of corporate law. However, while modern finance theory and attendant empirical research continue to explore the effects of law on shareholder value, the theory of the firm literature has been underutilized. This paper, presented as part of the Berle III: Theory of the Firm Symposium at Seattle University School of Law, argues that corporate law scholars should turn their attention back to this literature and develop a deeper understanding of the corporation as firm.

The Bizarre Law & Economics Of 'Business Roundtable V. Sec', Grant M. Hayden, Matthew T. Bodie

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Corporations are legal entities designed to foster certain kinds of collective economic activity. The decisionmaking power within a corporation ultimately rests with a board of directors elected by shareholders. Shareholders, however, do not use anything like a conventional ballot in these elections; instead, they fill out a “proxy ballot,” delivered to them by the incumbent board. This proxy ballot lists only the incumbent board’s chosen nominees, very often the board members themselves. If a shareholder wants to run for director or propose another nominee for the board, she needs to provide all other shareholders with a separate proxy ballot — …

Gender, Family, And Work, Marcia L. Mccormick

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The country has prohibited sex discrimination since the 1960’s, but society continues to view women and men differently because women give birth, breastfeed, and are traditional caregivers. This article takes a historical look at court decisions and legislative efforts to address equality where men and women are not similarly situated and also explores recent developments and current debates, such as caregiver discrimination, lactation rooms and breaks, and the Affordable Care Act’s contraceptive mandate. Despite the abundance of legislation and court decisions over the past forty years, much progress still needs to be made.

American Legal History Survey: Syllabus, Anders Walker

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This syllabus provides an overview of American Legal History, focusing on the manner in which law has been used to organize American society. Several themes will be traced through the semester, including law’s role in encouraging innovation and regulating social relations, in part through the elaboration of legal disciplines like property, tort, contract, criminal law, tax, business associations, administrative law, environmental law, securities regulation, commercial law, immigration, and health law. Emphasis will also be placed on the origins and evolution of constitutional law, from the founding to the present.

A Horrible Fascination: Segregation, Obscenity, & The Cultural Contingency Of Rights, Anders Walker

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Building on current interest in the regulation of child pornography, this article goes back to the 1950s, recovering a lost history of how southern segregationists used the battle against obscenity to counter the Supreme Court’s ruling in Brown v. Board of Education. Itself focused on the psychological development of children, Brown sparked a discursive backlash in the South focused on claims that the races possessed different cultures and that white children would be harmed joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal …

Iqbal And Interpretation, Karen Petroski

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Assessing a year’s worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, this Article provides a novel explanation for the decision and presents it as radical indeed, but in a way previously unremarked by commentators. The sharp divisions in the responses to Iqbal have masked a deeper consensus and have blocked wide awareness of the decision’s constructive potential for diverse interest groups. This consensus is based on a simplified account of the ideal function of pleading in our system of civil litigation, one that first took hold in the early twentieth century. What unsettles many observers …

A Model Decertification Law, Roger L. Goldman

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Despite the over 50-year existence of laws permitting the revocation of a police officer’s right to serve in law enforcement for serious misconduct, most scholars have ignored this development. Currently, 44 states have such laws, but they differ greatly in scope. This article suggests the three most important characteristics of an effective decertification law: first, the types of law enforcement officers covered by the law should be wide-ranging, including correctional officers and probation officers, not just police officers and deputy sheriffs and police officers. Second, the range of misconduct that can lead to decertification should not just be limited to …

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

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This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all …

Criminal Courts And Procedure, Stephen C. Thaman

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This chapter provides both a historical and modern perspective on criminal procedure around the world.

Human Rights In The United States: Legal Aid Alleges That Denying Access To Migrant Labor Camps Is A Violation Of The Human Right To Access Justice, Reena Shah, Lauren Bartlett

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It is estimated that there are more than 86 million migrant workers worldwide, the vast majority of whom suffer poor living and working conditions. In the United States, more than 3 million migrant farmworkers, including at least 100,000 children, are estimated to labor in fields every year, many of whom lack access to justice, earn sub-living wages, and exist in dehumanizing circumstances. Farmworkers are among the most exploited and vulnerable populations in the United States; yet, distressingly, they are also the least protected by U.S. law and law enforcement.

Legal aid advocates in the United States attempt to raise awareness …

The Hidden Limits Of The Charitable Deduction: An Introduction To Hypersalience, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

Behavioral economics introduced the concept of salience to law and economics. In the area of tax policy, salience refers to the prominence of taxes in the minds of taxpayers. This article complicates the literature on salience and taxation by introducing the concept of “hypersalience,” which is in many ways the mirror image of hidden taxation. While a revenue-raising tax provision must be hidden for taxpayers to underestimate their tax bill, a revenue-reducing tax provision – such as a deduction, exclusion, or credit – must be more than fully salient for taxpayers to underestimate their tax bill. In other words, the …

The Tragedy Of The Carrots: Economics & Politics In The Choice Of Price Instruments, Brian Galle

Georgetown Law Faculty Publications and Other Works

Externalities are one of the most fundamental market-failure justifications for government action, and pigouvian taxes and subsidies are standard tools for correcting them. Even so, neither the legal nor economic literatures offer any comprehensive account of when policy makers should prefer one to the other. This Article takes up that task. Prior efforts to distinguish between “carrots” and “sticks” have generally been limited to the context of pollution regulation, and I show here that even those are incomplete. I also extend the analysis to the case of positive externalities, where there is no prior literature to speak of. Overall I …

The Role Of Charity In A Federal System, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article critiques the prevailing justification for subsidies for the charitable sector, and suggests a new alternative. According to contemporary accounts, charity corrects the failure of the private market to provide public goods, and further corrects the failure of government to provide goods other than those demanded by the median voter.

However, the claim that government can meet the needs only of a single “median voter” neglects both federalism and public choice theory. Citizens dissatisfied with the services of one government can move to or even create another. Alternatively, they may use the threat of exit to lobby for local …

Bankruptcy, Backwards: The Problem Of Quasi-Sovereign Debt, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This Feature considers the debts of quasi-sovereign states in light of proposals to let them file for bankruptcy protection. States that have ceded some but not all sovereign prerogatives to a central government face distinct challenges as debtors. It is unhelpful to analyze these challenges mainly through the bankruptcy lens. State bankruptcy posits an institutional fix for a problem that remains theoretically undefined and empirically contested. I suggest a way of mapping the problem that does not work back from a solution. I highlight the implications of sovereign immunity, immortality, concurrent authority, macroeconomic policy, and democratic accountability for quasi-sovereign debt …

The Structural Role Of Private Enforcement Mechanisms In Public Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The American regulatory system is unique in that it expressly relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it.

Yet mechanisms of enforcement attendant …

The Federal Rules Of Civil Settlement, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement

This Article begins by providing …

Developing The Substantive Best Interests Of Child Migrants: A Call For Action, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

This Article attempts to accomplish two goals. First, it provides an overview of what is known and unknown about international child migrants. While this Conference will focus to some degree on child migrants in the United States, this Article shows how significant this phenomenon is around the world. Therefore, this Article provides data and points out the research gaps surrounding this issue.

Equally significant is the lack of legal and policy tools available for governments to respond well and in accordance with the Convention on the Rights of the Child ("CRC") to the children themselves. First, informed by social science …

The Regulation Of Private Equity, Hedge Funds And State Funds, Henry Ordower

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This United States report responds to a questionnaire that the general reporter for the project prepared. The project describes United States law features of hedge funds, private equity funds and sovereign wealth funds and identifies critical current issues in their regulation and governance. The report also includes discussion of recent United States legislation on financial services that affects those pooled investment vehicles.

Schedularity In U.S. Taxation, Its Effect On Tax Distribution, Comparison With Sweden, Henry Ordower

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The United States derives from a global income tax model under which it taxes it citizens and permanent residents on all their worldwide income without regard to the source of that income. Under a pure global model, the United States would combine income and deductions in a single tax computation. Other countries including Germany and Sweden originate in schedular income tax models under which the tax system classifies income by type, matches it with deductions from the same class, and computes a separate tax on each class. Neither the United States’ global model nor Germany’s or Sweden’s schedular models are …

Knowledge, Attitudes Toward Corporations, And Belief In A Just World As Correlates Of Tort Reform Attitudes, Molly J. Walker Wilson, Ruth H. Warner

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Recent legislation in tort law has resulted in such changes as states capping punitive and non-economic damages as well as abolishing the collateral source rule and joint and several liability. The purpose of the present research is to examine attitudes toward changes in tort law. We asked American adults about their attitudes toward the civil justice system and its players, experiences in the civil justice system, and belief in a just world. We found that a more negative attitude toward litigation and juries, higher belief in a just world, and a more positive attitude toward corporations and doctors predicted a …

Does America Need Public Housing?, Peter W. Salsich

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Does Twenty-First Century America Need Publicly-Owned Housing? This question was being asked in 2011, as an era of sharply-curtailed discretionary government spending dawned in the aftermath of the debt limitation crisis. From its inception in 1937 to the present, public housing remains the housing program with the deepest subsidy, designed for households who cannot compete effectively in the private housing market and, since the 1950s, the program that reaches the lowest income quadrant of society. Questions posed in 2011 center around the future of the 1.1 million public housing units in existence (down from 1.4 million two decades ago), all …

Homeownership — Dream Or Disaster?, Peter W. Salsich

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This article discusses the impact of the foreclosure crisis on the housing prospects of American families. Foreclosure is governed by state law, which establishes a procedure to enable lenders to recover property from defaulting borrowers through a public sale process. States authorize two different methods, judicial foreclosure, in which the foreclosure process requires a judicial hearing, and power of sale foreclosure, in which a trustee can offer mortgaged property to the highest bidder at a public sale after giving twenty days public notice. Judicial foreclosure is administered by state courts in twenty-three states. The power of sale foreclosure process is …

New Nip In The Bud: Does The Obama Board's Preemptive Strike Doctrine Enhance Tactical Employment Law Strategies?, Michael C. Duff

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In this essay I revisit the classic debate concerning when worker activity is sufficiently “concerted” to be covered by the National Labor Relations Act, a statute covering certain private sector protected “concerted” activity by workers. When workers are obviously engaged in concerted “labor” activity — classically activity like striking, picketing, or even just complaining about working conditions — they are generally protected against employer reprisal for doing so. Over the last few decades there has been disagreement about the definition and limits of “concert.” My renewed interest in this dormant but not dead subject was piqued by the “Obama Board’s” …

Confucian Virtue Jurisprudence, Linghao Wang, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.

This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of …