Law Commons^™

From Antislavery Lawyer To Chief Justice: The Remarkable But Forgotten Career Of Salmon P. Chase, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The name Salmon P. Chase is barely known and his career is largely forgotten. In this paper, the author seeks to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why this is a career worth both remembering and honoring, the author offers some possible reasons why his remarkable achievements have largely been forgotten.

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 …

Welcome To The New Originalism: A Comment On Jack Balkin’S Living Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this short piece for a symposium on Jack Balkin's new book, Living Originalism, I welcome Jack Balkin into the originalist camp. I discuss how and why a nonoriginalist can become an originalist. By discussing how I eventually became an originalist at the end of the last century, I hope to shed some light on what exactly is so remarkable about Jack Balkin’s move. After discussing the appeal of the New Originalism that account for Balkin's originalist move, I conclude by offering a cautionary note about the use of "underlying principles in Balkin's "text and principle" approach, which in certain …

Egypt's New Constitution: The Islamist Difference, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The paper discusses the distributional impact of the rules of the new Egyptian constitution (2012). It specifically addresses the way such rules, substantive and (potentially) procedural, can influence Egyptian law's identity and the underlying relations between the state and individuals and among individuals themselves that such identity implies.

Ruth Bader Ginsburg's Equal Protection Clause: 1970-80, Wendy Webster Williams

Georgetown Law Faculty Publications and Other Works

Professor Ruth Bader Ginsburg of Columbia Law School was the leading Supreme Court litigator for gender equality in the crucial decade, 1970-80. In addition to teaching her classes, producing academic articles, and co-authoring the first casebook on sex discrimination and the law, she worked on some sixty cases (depending on how one counts), including over two dozen cases in the Supreme Court. Rumor has it she did not sleep for ten years; her prodigious output gives the rumor some credence. Her impact on the law during that critical decade earned her the title "the Thurgood Marshall of the women's movement" …

Reassessing The Citizens Protection Act: A Good Thing It Passed, And A Good Thing It Failed, Rima Sirota

Georgetown Law Faculty Publications and Other Works

The Citizens Protection Act (CPA) of 1998 has always been a lightening rod for criticism, and it remains so today. This article reassesses the CPA’s perceived inadequacies in light of how it has actually affected (or, not affected) federal prosecutors’ involvement in criminal investigations. The article takes issue with the critics and demonstrates that the CPA succeeded where it should have, failed where it should have, and left us—however inadvertently—with a remarkably coherent and consistent approach to regulating federal prosecutors’ involvement in criminal investigations regardless of whether a suspect retains counsel early in the proceedings.

The CPA requires federal prosecutors …

“[This] I Know From My Grandfather”: The Battle For Admissibility Of Indigenous Oral History As Proof Of Tribal Land Claims, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

A major obstacle indigenous land claimants must face is the application of federal evidentiary rules, like the hearsay doctrine, which block the use of oral history to establish legal claims. It is often oral history and stories that tribes rely upon as evidence to support their claims, reducing substantially the likelihood of a tribe prevailing. Indigenous oral history presents unique challenges to judges when faced with its admissibility. Canadian courts have largely overcome these challenges by interpreting evidentiary rules liberally, in favor of the aborigines. As such, Canadian aborigines have enjoyed greater land claim success than indigenous claimants in the …

Civil Rights For The Twenty-First Century: Lessons From Justice Thurgood Marshall's Race-Transcending Jurisprudence, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This Essay pays tribute to justice Thurgood Marshall's race-transcending vision of universal human dignity, and explores the importance of building cross-racial alliances to modern civil rights advocacy. justice Marshall's role as a "Race Man" is evident in much of his jurisprudence, where he fought for years to promote equal opportunity and equal justice. As an advocate for all marginalized people, justice Marshall viewed equal justice as transcending race, and this Essay suggests that the multi-racial coalition that supported President Obama aligns with Marshall's vision. The Essay evaluates the civil rights movement through the lens of Justice Marshall's equality analysis, and …

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.

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 …

Process Evaluation Of The Basic Training Program At A State Corrections Academy In The Southeast, Wendy Dawn Williams

Theses and Dissertations

This applied dissertation was designed to provide law enforcement and corrections administrators with current information about the components of basic training that can affect the retention of newly employed trainees during basic training. Attracting qualified applicants for law-enforcement jobs is a challenging task, and the preemployment screening and hiring processes are very expensive for agencies already plagued with reduced budgets. By the time a trainee actually makes it to basic training, a great deal of time and money has already been invested by the agency, and the trainee becomes an investment. When more than 20% of trainees exit a basic …

Improper Deportation Of Legal Permanent Residents: The U.S. Government’S Mischaracterization Of The Supreme Court’S Decision In Nijhawan V. Holder, Michael R. Devitt

San Diego International Law Journal

The purpose of this Article is to draw attention to the government’s misinterpretation of the central holding in Nijhawan v. Holder and how it has led to the improper dilution of evidentiary standards in removal proceedings when determining the $10,000 threshold loss requirement under section 101(a)(43)(M)(i) of the INA [hereinafter “M(i)”]. Section II of this article provides a brief doctrinal overview and summary of my proposed procedural methodology; sections III and IV provide essential background information regarding the Supreme Court’s important pre-Nijhawan opinions and the inconsistent methods circuit courts have applied when calculating the monetary threshold under the fraud or …

An Analysis Of The Legal Status Of Cia Officers Involved In Drone Strikes, Donna R. Cline

San Diego International Law Journal

This Article introduces international humanitarian law as the applicable legal standard, and develops the distinction between international and non-international armed conflict. Section II will define the key elements used to determine whether a situation of hostilities rises to the level of an armed conflict: the intensity of the conflict and the organization of the parties. Furthermore, this section will analyze the idea of internationalized armed conflict and examine the standard for determining when an attack by an armed group may be attributed to a State. Section III of this article describes the different categories of actors found in situations of …

A High Seas Requirement For Inciters And Intentional Facilitators Of Piracy Jure Gentium And Its (Lack Of) Implications For Impunity, Jonathan Bellish

San Diego International Law Journal

Around 2005, maritime piracy made a troubling resurgence three quarters of a century after a consensus had been reached that the age of piracy had permanently ended. Yet piracy returned in a slightly different form, with pirates relying more on land-based facilitators than their historical counterparts. Maritime piracy’s reappearance made ripe for consideration the question of whether a facilitator of maritime piracy must be physically present on the high seas while facilitating in order to be subject to universal jurisdiction. This Article undertakes an analysis of the text, statutory context, history, and policy impetus behind UNCLOS art. 101 as it …

Breaking Legal Ground: A Bivens Action For Noncitizens For Trans-Border Constitutional Torts Against Border Patrol Agents, Julie Hunter

San Diego International Law Journal

This Comment assesses whether noncitizens can sue in U.S. courts when they have sustained an injury outside of U.S. territory. This Comment assumes the underlying merits of the Hernandez’s claim that Agent Mesa used excessive force when shooting at Sergio. It will not address whether Agent Mesa acted in self-defense. Part II will discuss the context of the Hernandez litigation and its claims against the U.S. Government, its agencies, and employees for the use of excessive force against a noncitizen. It will also discuss the legal requirements for bringing an excessive force claim under Bivens v. Six Unknown Named Agents …

Naked Dishonesty: Misuse Of A Social Security Number For An Otherwise Legal Purpose May Not Be A Crime Involving Moral Turpitude After All, Nathanael C. Crowley

San Diego International Law Journal

This Comment questions whether the misuse of a Social Security number for an otherwise legal purpose is a crime involving moral turpitude. It begins with a history of moral turpitude and its initial connection to immigration law in the United States. Through a close analysis of misuse of a Social Security number for an otherwise legal purpose as a crime involving moral turpitude in modern cases, this Comment will examine the role of fraud and dishonesty in the question. The analysis reveals a critical distinction between crimes involving dishonesty and crimes involving fraud. This distinction shows that crimes involving naked …

South Africa's Electricity Crisis: The Need To Reconcile Environmental Policy Decisions With International Treaties, Brittany D. Botterill

San Diego Journal of Climate & Energy Law

This Comment examines whether South Africa’s treaty obligations conflict with the requirement of the country’s government to provide electricity to a burgeoning home-owning population. Section II introduces Eskom, South Africa’s largest utility company, which produces most of the electricity used in South Africa and surrounding countries. Section III discusses South Africa’s role in the Southern Africa Power Pool and the additional obligations this membership places on the country. Section IV then examines the controversial loan that South Africa received from the World Bank to assist in building the Medupi coal-fired power plant. Section V illustrates South Africa’s climate change obligations …

Nsa Surveillance Since 9/11 And The Human Right To Privacy, G. Alex Sinha

Hofstra Law Faculty Scholarship

Since shortly after 9/11, if not earlier, the National Security Agency (NSA) has been collecting massive amounts of data about American citizens and permanent residents, ostensibly with the aim of preempting future terrorist attacks. While the NSA's program has invited substantial scholarly attention, specifically concerning its compliance with the United States Constitution and various domestic statutes, the academic debate about its merits entirely omits one crucial fact: the United States is also legally obliged to protect a human right to privacy, as codified in Article 17 of the International Covenant on Civil and Political Rights (ICCPR). This Article seeks to …

Crashing The Misdemeanor System, Jenny Roberts

Hofstra Law Faculty Scholarship

No abstract provided.

Copyright And Social Media: A Preliminary Case Study Of Pinterest, Elizabeth Townsend Gard, Bri Whetstone

MC Law Review

No abstract provided.

"Taxpayers As Victims: Taxpayer Harm & Criminalization", Brenner M. Fissell

Hofstra Law Faculty Scholarship

Criminal statutes are least objectionable when they are justified by the notion that the conduct being prohibited is harmful to others. Over the past few decades, a new argument has arisen that makes this very easy to do. This argument appeals to the reality that often when one’s conduct causes or risks physical injury to one’s self, governmental services (e.g. rescue, police, healthcare) will be provided, and that the cost of these services is an unfair burden imposed upon taxpayers. This argument understands the taxpayers to be victims, and the self-harming conduct to therefore be harmful to others, and justifiably …

The Dual Standard Of Review In Contracts Clause Jurisprudence, Brenner M. Fissell

Hofstra Law Faculty Scholarship

The article discusses American constitutional law, the U.S. Supreme Court's ruling in the 1977 case United States Trust Co. of New York v. New Jersey, and a reported dual standard of review in regards to Contracts Clause jurisprudence under the the nation's Constitution as of April 2013. Legislative repudiations of private agreements, government contracting, and public choice theory are addressed, along with trusteeship and police powers. A reasonableness analysis for contracts is mentioned.

Some Legal Impacts Of The Emerging International Climate Change Regime On Energy Prices, James E. Hickey Jr

Hofstra Law Faculty Scholarship

From the beginning of scientific assessment of climate change in the late 1970’s to the most recent conference of the parties (COP) to the Kyoto Protocol in Doha in 2012 , the international community has been attempting to establish a workable legal regime to deal with climate change. The purpose of this article is to explore some of the legal effects this emerging international climate change regime may have on energy prices in the foreseeable future. Specifically, this article in section II article accepts certain predicates relating to climate change and energy prices. In section III, it lays out briefly …

Are Student Affairs Professionals “Educators?:” Student Affairs And The Scope Of The Educational Exemption Of Copyright Law, Dallas Long

Faculty and Staff Publications – Milner Library

Copyright is a critical, emerging issue in American higher education. Copyright restricts how educators use copyrighted materials in teaching activities. Although the fair use doctrine and the educational exemption in U.S. copyright law provide exceptions for educators, student affairs professionals might not meet the standards of the educational exemption. This paper serves as a primer on U.S. copyright law, the fair use doctrine, and the educational exemption. Analyses of case law suggest student affairs professionals should rely on the fair use doctrine rather than the educational exemption when using copyrighted materials for educational purposes.

Pre-Disclosure Accumulations By Activist Investors: Evidence And Policy, Lucian A. Bebchuk, Alon Brav, Robert J. Jackson Jr., Wei Jiang

Ira M. Millstein Center for Global Markets and Corporate Ownership

The Securities and Exchange Commission (SEC) is currently considering a rulemaking petition requesting that the Commission shorten the ten-day window, established by Section 13(d) of the Williams Act, within which investors must publicly disclose purchases of a five percent or greater stake in public companies. In this Article, we provide the first systematic empirical evidence on these disclosures and find that several of the petition's factual premises are not consistent with the evidence.

Our analysis is based on about 2,000 filings by activist hedge funds during the period of 1994-2007. We find that the data are inconsistent with the petition's …

Conscience, Incorporated, James D. Nelson

Ira M. Millstein Center for Global Markets and Corporate Ownership

Do business corporations have free exercise rights? This question has become critically important in recent challenges to the Affordable Care Act’s so-called “contraception mandate.” A host of businesses selling ordinary goods and services claim that they cannot be compelled to provide employees with insurance that covers contraception. Courts have divided over whether corporations can assert rights of conscience, and existing theoretical accounts fail to provide guidance on this question.

This Article offers a new normative framework for evaluating corporate claims of conscience. Drawing on theories of conscience and collective rights, it develops a “social theory” of conscience that explains how …

Table Of Contents

FIU Law Review

No abstract provided.