Law Commons^™

Of Law And The Revolution, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws …

Lessons For International Law From The Arab Spring, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Not all that begins in hope ends in happiness. In Egypt, the exuberance of Tahrir Square has given way to frustration over the resilience of the security state; in Libya, the anti-Qaddafi movement has fractured along tribal and factional lines; in Syria, as of this writing, calls for reform continue to be met with gunfire from government forces. Throughout the Middle East—from Egypt, Libya and Syria to Yemen, Tunisia, Bahrain and elsewhere—the heady excitement of 2010 has given way to a more sober awareness that enduring political change may take years, if not generations. The Arab Spring brought both progress …

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

Can We Please Stop Talking About Neutrality? Koppelman Between Scalia And Rawls, Chad W. Flanders

All Faculty Scholarship

In his essay, Religious Liberty as Liberty, Douglas Laycock cautioned against what he would later dub “the Puritan mistake,” which is the mistake, as he put it, of looking at whether religion is a good (or bad) thing rather than seeing religious liberty as “first and foremost a guarantee of liberty.” We should not, Laycock warned, let our understanding of the religion clauses be driven by what we think, substantively, about the value of religion. It should be driven, instead, by an interest in protecting the freedom of religion, and not religion per se.

Although Andy Koppelman positions himself in …

The Case Against The Case Against The Death Penalty, Chad W. Flanders

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Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions …

State Power To Define Jurisdiction, Samuel P. Jordan, Christopher Kennedy Bader

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States should have much broader authority to decline jurisdiction over federal claims. The normative considerations supporting this doctrine of “reverse abstention” have been developed in previous work. But what of the Constitution? The traditional reading, reflected in existing precedent, asserts that the Supremacy Clause, Article III, and perhaps Article I operate together to create an inflexible obligation for state courts to hear federal claims. This reading is misguided. The Supremacy Clause contains no jurisdictional obligation of its own force, but only gives supreme effect to other validly enacted federal laws. And no other clause provides the authority to impose such …

Constitutional Limitations On Closing The Gender Gap In Employment, Marcia L. Mccormick

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Despite our country’s efforts to eliminate it, there remain pay and achievement gaps between men and women in the workplace. This article summarizes legal approaches to close the gap, constitutional developments that have slowed government’s power to address the inequality, worrisome trends in recent cases, and the implications of these. This article proposes a future of utilizing congress’s taxing power to address inequalities.

From Podcasts To Treasure Hunts— Using Technology To Promote Student Engagement, Marcia L. Mccormick

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Three influential calls for reform in legal education, the MacCrate Report, the Carnegie Report, and most recently the Stuckey Report, have all recommended that professors use teaching methods to provide greater opportunities for students to practice problem solving skills and receive feedback on their performance. Being a lawyer is much more than memorizing rules; students need to be able to understand the big picture and use the details to problem solve. This article details how to use audio and written podcast summaries to help students see the big picture in a subject and how each smaller topic fits together into …

Utopian Visions Toward A Grand Unified Global Income Tax, Henry Ordower

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Over the past several decades, many countries that historically relied on progressive taxes on income, wealth, and decedents’ estates for much governmental revenue have shifted to less progressive and regressive taxes on labor and consumption. Reasons for the shift are many but include international tax competition as world economies have become increasing global. This paper assumes that progressive taxes remain the best and fairest choice for providing governmental revenue, so that a fundamental change in the scope of the progressive income tax is essential to protect progressivity.

The paper argues that the rapid growth of international cooperation on economic and …

The Corporate Income Tax: United States Of America Report, Henry Ordower

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In the context of a European project describing variations in the structure of the corporate income tax, this paper briefly describes the United States corporation income tax and contextualizes it within the broader category of business entity taxation. The paper identifies the various tax models that the United States uses for business entities and discusses the historical delinking of limited liability protection for owners and managers from traditional double taxation.

Preserving The Corporate Tax Base Through Tax Transparency, Henry Ordower

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International corporate tax competition continues to exert pressure on legislatures to reduce corporate tax rates as well as the rate imposed on shareholders. To combat this pressure, this commentary recommends eliminating the corporate income tax. Instead corporations should become tax transparent so that a full taxon corporate income is imposed on corporate owners but collected initially at corporate level through a required withholding tax at the maximum rate applicable to individuals. Contemporary data processing capacity enables corporations to track share ownership and report to shareholders amounts withheld on their behalf so that they may include their shares of corporate income …

Kite: Irs Wins Qtip Battle But Loses Annuity War, Kerry A. Ryan

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In Kite, the Tax Court held that a 10-year deferred annuity constituted adequate and full consideration for a transfer of family partnership interests, even though the transferor died before receiving any payments. The court also held that the liquidation of a qualified terminable interest property trust and subsequent sale of its assets constituted a disposition of the qualifying income interest for life, resulting in a deemed transfer of the entire trust under section 2519. Ryan discusses those holdings and two more issues that were not raised in the Tax Court proceeding but are clearly implicated by the Kite facts.

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

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Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

Making State Merit Scholarship Programs More Equitable And Less Vulnerable, Aaron N. Taylor

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Since the 1993 arrival of Georgia’s Helping Outstanding Pupils Educationally (HOPE) Program, meritscholarships have become popular tools for states seeking to maximize human capital within their borders. However, research has concluded both that the bulk of merit scholarships goes to students with the least financial need and the popularity of these programs has led to a de-emphasis on need-based scholarshipfunding in some states. These trends are even more worrisome when these programs are funded by lottery revenue, as is the case with HOPE. Lotteries are inherently regressive because the people who play (and pay related taxes) tend to be poor …

Reimagining Merit As Achievement, Aaron N. Taylor

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Higher education plays a central role in the apportionment of opportunities within the American meritocracy. Unfortunately, narrow conceptions of merit limit the extent to which higher education broadens racial and socioeconomic opportunity. This article proposes an admissions framework that transcends these limited notions of merit. This “Achievement Framework” would reward applicants from disadvantaged backgrounds who have achieved beyond what could have reasonably been expected. Neither race nor ethnicity is considered as part of the framework; however, its nuanced and contextual structure would ensure that racial and ethnic diversity is encouraged in ways that traditional class-conscious preferences do not. The overarching …

Strange Traffic: Sex, Slavery & The Freedom Principle, Anders Walker

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This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle …

Bramble Bush Revisited: Karl Llewellyn, The Great Depression, And The First Law School Crisis, 1929-1939, Anders Walker

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This article recovers the plight of legal education during the Great Depression, showing how debates over practical training, theoretical research and the appropriate length of law school all emerged in the 1930s. Using Bramble Bush author Karl Llewellyn as a guide, it strives to make three points. One, Depression-era critics of law school called for increased attention to practical skills, like today, but also a more interdisciplinary curriculum – something current reformers discount. Two, the push for theoretical, policy-oriented courses in the 1930s set the stage for claims that law graduates deserved more than a Bachelor of Laws degree, bolstering …

Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden

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This essay approaches the scholarship of the late Professor Larry Ribstein from a progressive vantage point. It argues that Ribstein's revolutionary work upended the "nexus of contracts" theory in corporate law and provided a potential alternative to the regulatory state for those who believe in worker empowerment and anti-cronyism. Progressive corporate law scholars should look to Ribstein's scholarship not as a hurdle to overcome, but as a resource to be tapped for insights about constructing a more egalitarian and dynamic economy.

Participation As A Theory Of Employment, Matthew T. Bodie

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The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition of “employee” since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participation in a team production process. This Article uses the theory …

Report On Usa, Stephen C. Thaman

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This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks of 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection …

Social Enterprise: Who Needs It?, Brian Galle

Georgetown Law Faculty Publications and Other Works

State statutes authorizing firms to pursue mixtures of profitable and socially-beneficial goals have proliferated in the past five years. In this invited response essay, I argue that for one large class of charitable goals the so-called “social enterprise” firm is often privately wasteful. While the hybrid form is a bit more sensible for firms that combine profit with simple, easily monitored social benefits, existing laws fail to protect stakeholders against opportunistic conversion of the firm to pure profit-seeking. Given these failings, I suggest that social enterprise’s legislative popularity can best be traced to a race to the bottom among states …

Carrots, Sticks, And Salience, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article considers the second-best design of Pigouvian taxes and subsidies in the presence of agents who are imperfectly aware of the instrument. Until very recently, the price instrument literature has assumed perfect rationality, and even the handful of prior attempts to account for “hidden” prices focus mainly on the income tax. I extend these efforts in several directions. First, I show that the best available instrument for correcting negative externalities is often one whose price is partially adjusted upwards -- or, in the case of subsidies, downwards -- to counter-act the neglect of irrational actors. In addition, I argue …

Charities In Politics: A Reappraisal, Brian Galle

Georgetown Law Faculty Publications and Other Works

Federal law significantly limits the political activities of charities, but no one really knows why. In the wake of Citizens United, the absence of any strong normative grounding for the limits may leave the rules vulnerable to constitutional challenge. This Article steps into that breach, offering a set of policy reasons to separate politics from charity. I also sketch ways in which my more-precise exposition of the rationale for the limits helps guide interpretation of the complex legal rules implementing them.

Any defense of the political limits begins with significant challenges because of a long tradition of scholarly criticism of …

The Solicitor General And Confession Of Error, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Confessions of error have a long history. From the very beginning of the Solicitor General's position, we have had confessions of error.

All Solicitors General-it doesn't matter whether they are appointed by a Republican or a Democrat-have confessed error, roughly at the pace of two to three times per Supreme Court term.

Indisputable Violations: What Happens When The United States Unambiguously Breaches A Treaty, David A. Koplow

Georgetown Law Faculty Publications and Other Works

!e United States justi"ably prides itself on its devotion to “the rule of law.” We take legal instruments seriously; when we assume a binding legal obligation at home, we mean it, and we expect all parties to the agreement to demonstrate comparable fealty.

!is commitment to the law also extends to international agreements. Treaties are the coin of the international realm, and the United States leads the world both in making treaties and in publicly and pointedly holding others accountable when they fall short of full compliance. What happens, then, when the United States contravenes a binding international legal obligation …

The Incoherence Of Marital Benefits, Robin West

Georgetown Law Faculty Publications and Other Works

En route to finding the Defense of Marriage Act (DOMA) an unconstitutional violation of the Fifth Amendment's Equal Protection Clause, the Second Circuit Court of Appeals in Windsor v. United States gave short shrift to one of Congress's primary arguments in defense of the Act: that the federal government has a compelling interest in limiting federal marriage benefits to opposite-sex couples because traditional marriage has the laudable purpose-or function-of channeling the heterosexual sex that creates children into a way of life that provides the optimal environment for the rearing of those children. In other words, DOMA aims to minimize irresponsible …

United States Of America: The Burden Of Proof In Tax Matters, Henry Ordower

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This United States report responds to a questionnaire that the general reporters prepared for the 2011 meeting of the European Association of Tax Law Professors in Uppsala, Sweden, June 3-5, 2011. The report describes and analyzes the U.S. law on burden of proof and burden of production in tax matters in the context of tax law procedure, including the settlement function of appeals and information reporting, uncertain tax positions (Form UTP) and foreign accounts of U.S. taxpayers. This report also addresses the interplay of burden of proof and the anti-abuse provisions, including the “economic substance” clarification in section 7701(o) and …

Report On Usa, Stephen C. Thaman

All Faculty Scholarship

This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks on 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection …

The Lawyer's Toolbox: Teaching Students About Risk Allocation, Dana Malkus, Scott Stevenson, Eric J. Gouvin, Usha Rodrigues

All Faculty Scholarship

This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panel focuses on techniques for teaching risk allocation as part of transactional skills classes. The panelists describe their approaches to teaching risk allocation, from syllabus design to final evaluations. How can a professor help students to understand the basic concepts of risk, the role risk plays in business and legal decisions, and how they can help clients manage risk. The techniques for teaching risk allocation include hypotheticals, visual aids, and hands-on assignments. The panelists each take their students down a different path …

Helping Your Client Create And Grow A Successful Nonprofit Organization: A Checklist For The ‘Non’ Nonprofit Attorney, Dana M. Malkus

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The following feature is an abridged version of “Helping Your Client Create and Grow a Successful Nonprofit Organization,” an article which appeared in volume 67 of the Journal of The Missouri Bar in October 2011. The purpose of the original article was to provide Missouri attorneys with information and tools designed to enable them to offer pro bono legal assistance to start-up and established nonprofit organizations.