Law Commons^™

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

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 …

Fisher V. Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by …

The Eye Alone Is The Judge: Images And Design Patents, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Design patents are an area of intellectual property law focused entirely on the visual, unlike copyright, patent, trademark, trade secret, or the various sui generis protections that have occasionally been enacted for specific types of innovation. Judges and lawyers in general are highly uncomfortable with images, yet design patents force direct legal engagement with images. This short piece offers an outsider’s view of what design patent law has to say about the use of images as legal tools, why tests for design patent infringement are likely to stay unsatisfactory, and what lessons other fields of intellectual property, specifically copyright, might …

Juvenile Justice After Graham V. Florida: Keeping Due Process, Autonomy, And Paternalism In Balance, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

Legal disputes involving children invariably evoke a complex matrix of issues such as child and adolescent capacity, individual rights and autonomy, parental authority, and in the criminal justice context-diminished culpability for a minor's actions. While it is difficult to identify a clear and cohesive jurisprudence regarding the balance between children's autonomy and children's vulnerability across Supreme Court cases, a series of cases over the last decade, including Roper v. Simmons, Graham v. Florida, and J.D.B. v. North Carolina, offer a more consistent view of children as vulnerable, malleable, and in need of protection, at least in the …

A Decision Theory Of Statutory Interpretation: Legislative History By The Rules, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. …

Lessons From Social Psychology For Complex Operations, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This short essay looks at several social forces that powerfully affect human behavior, often trumping individual “character,” personality, knowledge, and even deeply held moral beliefs. Specifically, this essay looks briefly at issues of obedience, conformity, and group polarization, discussing the ways in which they can affect and distort individual behavior. Ultimately, this essay suggests, understanding these dynamics can have important implications for how we think about counterinsurgency and stability operations.

A Talent For Risk And Trust: A Tribute To Aryeh Neier, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This essay is a tribute to Aryeh Neier, former president emeritus of the Open Society Foundations and founder of the Human Rights Watch. The author discusses Aryeh Neier's talent for risk and trust.

National Security In The Information Age, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The information environment has been changing right along with the broader security environment. Today, the information environment connects almost everyone, almost everywhere, almost instantaneously. The media environment has become global, and there’s no longer such thing as “the news cycle” —everything is 24/7. Barriers between US and global publics have virtual disappeared: Everything and anything can “go viral” instantly, and it’s no longer possible to say one thing to a US audience and another thing to a foreign audience and assume no one will ever set the statements side by side. The Pakistani military has a very clear idea of …

Democracy Promotion: Done Right, A Progressive Cause, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

By the beginning of the Obama Administration, democracy promotion had become a rather tarnished idea, and understandably so. Like Islam or Christianity, much blood has been shed beneath its banner. It may be true that democracies don’t go to war with one another, but they certainly go to war, and their wars kill people just as dead as the wars undertaken by illiberal regimes. Anyone on the political left can tell the story: During the Cold War, the United States fought endless proxy wars and engaged in a great deal of overt and covert mischief, all in the name of …

De-Concentrating Poverty: De-Constructing A Theory And The Failure Of Hope, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

Since the late 1980s, led by William Julius Wilson’s The Truly Disadvantaged, scholars have been writing about the social problems caused by the concentration in residential communities of high levels of poverty. Even before Wilson’s book, government policy, which previously had resulted in racially and economically segregated communities, had begun to shift towards de-concentration. The consent decree in Hills v Gautreaux, and the HOPE VI and Moving to Opportunity Programs all pointed towards de-concentration of poverty. Commentators have suggested both benign and not-so-benign reasons for the policy shift.

There were a variety of quite hopeful goals promoted by …

The Struggle For Legal Philosophy (Vis-À-Vis Legal Education): Methods And Problems, Imer Flores

Georgetown Law Faculty Publications and Other Works

The article challenges the empirical claim that suggests that the legal skills needed to successfully practice law are not--and cannot be--learned at law schools, and contrasts it with the conceptual claim that indicates that the legal tasks needed for practicing law presuppose a legal theory--or at least requires a link between theory and practice. Hence, the dual claim--empirical and conceptual--is that legal philosophy is an important part of a legal curriculum and necessary to bridge, rather than to deepen, the existing gap between theory and practice.

The Problem About The Nature Of Law Vis-À-Vis Legal Rationality Revisited: Towards An Integrative Jurisprudence, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper the author argues, following Frederick Schauer, that attempting to move theoretically from-the-necessary-to-the-important may hinder our understanding of law. He further argues that attempting to move from-the-important-to-the-necessary may well be a more promising route for advancing our understanding of law as an interpretive practice which is not merely important or valuable but morally important or valuable and even necessary, as Ronald Dworkin has advocated. The authors argument also draws on the insights of Oliver Wendell Holmes Jr., who by discussing the important, but apparently neither necessary nor sufficient aspects of legal practice, integrated both logic and experience into …

Assessing The Impeachment Of President Bill Clinton From A Post 9/11 Perspective, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The impeachment of President Clinton was more a circus than a serious effort to remove the President of the United States. The reason is simple: Few people--in the Congress or the country--wanted to remove him or believed the impeachment effort would actually result in his removal. Instead, it was a partisan political effort to embarrass Clinton and "send a message" of disapproval. Congress was attaching a "scarlet letter." But this was an indulgence that posed considerable danger that few in Congress considered. In particular, few tried to assess the potential impact this use of the process would have on the …

The Cathedral Engulfed: Sea-Level Rise, Property Rights, And Time, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Sea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims. This article analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters. Retreat regulations present difficult takings problems, because …

Can Vermont Put The Nuclear Genie Back In The Bottle: A Test Of Congressional Preemptive Power?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Even before the nuclear core meltdowns at the Fukushima Daiichi nuclear reactors in Japan re-stoked public anxiety about nuclear energy, Vermont’s Senate, under the auspices of Vermont Act No. 160, voted to block continued operation of Vermont Yankee Nuclear Power Plant after the expiration of its forty-year operating license. This article examines whether a state can legislatively override a permit issued by the Nuclear Regulatory Commission extending the license of a power plant. The author places this question within a broader federalism context, in which states assert their sovereign rights to regulate the environment in the shadow of federal mandates. …

The Master Mason: How Professor Baldus Built A Bridge From Learning To Law And The Legacy Of Equal Justice He Leaves Behind, James E. Baker

Georgetown Law Faculty Publications and Other Works

These are Chief Judge Baker’s remarks eulogizing the late Professor David Baldus. Chief Judge Baker observes that Professor Baldus was an extraordinary educator-lawyer who mastered the fields of social science and statistics. He adds that Professor Baldus was diligent in his research and strived to make the law accessible. Chief Judge Baker discusses how Professor Baldus’s research on the death penalty and proportionality review successfully bridged the law and learning, without ever losing sight of compassion.

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 …

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 …

V.3, 2012 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Foreword, Dan Hua

San Diego Journal of Climate & Energy Law

On April 15, 2011, the San Diego Journal of Climate & Energy Law and the Energy Policy Initiatives Center co-hosted the Third Annual Climate & Energy Law Symposium. The Symposium examined various emerging law and policy approaches to encourage clean energy. At the Symposium, panels consisting of legal and policy experts from across the country addressed and debated a variety of key issues including the coordination of state and federal roles in the clean energy sector, the design of policies and markets for renewable energy and energy efficiency, and the balance between energy and environmental protection.

State Renewable Portfolio Standards: Is There A "Race" And Is It "To The Top"?, Lincoln L. Davies

San Diego Journal of Climate & Energy Law

This Article proceeds in six parts. Part II offers a primer on RPSs, describing RPSs primary traits, how the laws are designed, why they are enacted, and how that relates to regulatory races. Part III overviews the literature on regulatory races, contrasting races to the bottom with races to the top. Part IV conceptualizes how state enactments of RPSs might be viewed as a race to the top. Part V examines evidence on whether RPSs can in fact be understood as a regulatory race. Using this evidence, Part V determines that state RPSs do not appear to be trending toward …

Why Not A Regional Approach To State Renewable Power Mandates?, Kirsten H. Engel

San Diego Journal of Climate & Energy Law

There is much to be said in favor of a regional approach with respect to renewable energy mandates. First, uniformity in the particulars of state RPS laws would assist the growing interstate renewable energy market. Second, allowing renewable power that is generated anywhere but delivered locally to satisfy the RPS of any of the states within the region, should enhance the reliability of the market for renewable power, increase the amount of intermittent power accommodated by the grid, and lower the price of renewable power. Each of these effects will strengthen the regional market for renewable power to the overall …

Solar Energy Development On The Federal Public Lands: Environmental Trade-Offs On The Road To A Lower Carbon Future, Robert L. Glicksman

San Diego Journal of Climate & Energy Law

The federal government has endorsed more extensive use of the federal public lands for the production of solar power, both to reduce the greenhouse gas emissions that contribute to climate change and to bolster the security of domestic energy supplies. Spurred by grant money made available under the American Recovery and Reinvestment Act of 2009, the Bureau of Land Management (BLM) in 2010 approved nine utility-scale solar projects on public lands in California and Nevada. These projects were designed to avoid adversely affecting the habitats of endangered and threatened species that frequent the desert southwest and cultural resources important to …

Energy And Animals: A History Of Conflict, Alexandra B. Klass

San Diego Journal of Climate & Energy Law

Environmental groups, federal and state agencies, and others who support the development of renewable energy have struggled in recent years with the adverse impacts of such development on animals and animal habitat. Although renewable energy development has the benefit of creating energy without the greenhouse gas emissions associated with traditional energy development, it does so through an intensive use of land, including federal public lands, thus competing with habitats for protected species and other wildlife. Conflicts between energy and animals, of course, are nothing new. Congress, agencies, and courts have attempted for decades to balance the public interest in domestic …

Port And Coastal State Control Of Atmospheric Pollution, Michael W. Reed

San Diego Journal of Climate & Energy Law

Controlling atmospheric pollution which originates beyond national borders always presents difficult issues. The problems are multiplied when the source is a merchant vessel, registered under a foreign flag of convenience and operating seaward of state and federal sovereign limits. Nevertheless, international law provides alternative approaches through which the coastal sovereign may protect its onshore environmental interests.

The purpose of this paper is to lay out the problems, both factual and legal, and discuss means by which they may be resolved. California is used as a case study. The state has long suffered from excessive air pollution. Congress acknowledged the state?s …

Clean Energy And The Price Preemption Ceiling, Jim Rossi

San Diego Journal of Climate & Energy Law

Part I of this Article provides an illustration of the feed-in tariff one clean energy innovation many state and municipal governments have enacted to encourage investment in renewable energy. In a nutshell, the feed-in tariff is a secure contract for renewable power at a set price over a term of years that provides a return to investors in these projects, such as a homeowner installing a solar panel or wind turbine. Part II of this Article describes preemption issues that have risen with feed-in tariffs under two federal statutes the Public Utility Regulatory Policies Act of 1978, which requires utilities …