Law Commons^™

Putting A Hold On Ice: Why Law Enforcement Should Refuse To Honor Immigration Detainers, Alia Al-Khatib

American University Law Review

No abstract provided.

Litigation Finance In The Public Interest, Jason M. M. Wilson

American University Law Review

No abstract provided.

Addressing Global Threat: Exploring The Relationship Between Common Purpose And Leadership, Charles R.H. Powell

Antioch University Dissertations & Theses

While the mention of common purpose is prevalent in leadership studies, there are few attempts to explore the relationship between common purpose and leadership. This study delves into the questions of if and how common purpose and leadership inform one another. How leaders adapt purpose and leadership approaches in response to evolving and turbulent conditions may foster the depth and sustainment of immediate and subsequent accomplishments. Through phenomenological research in the venue of nuclear weapons reduction, a common purpose that is both globally pervasive and imbued with a sense of urgency, the lived essence of those engaged in common purpose …

The Affordable Care Act, Remedy, And Litigation Reform, Brendan S. Maher

American University Law Review

No abstract provided.

2013 Patent Law Decisions Of The Federal Circuit, Robert A. Pollock, Mark J. Feldstein, Barbara R. Rudolph, Joyce Craig, Elizabeth D. Ferrill, Corinne Miller Lagosh, Michelle Pacholec, Kara Specht, Michael A. Stramiello, Jonathan R. K. Stroud

American University Law Review

No abstract provided.

The New Habeas Corpus In Death Penalty Cases, Larry Yackle

American University Law Review

No abstract provided.

They Could Be Back: The Possibility Of Termination Rights For Session Musicians, Alexandra El-Bayeh

American University Law Review

No abstract provided.

Regulating Hydraulic Fracturing Through Land Use: State Preemption Prevails, Kevin J. Duffy

University of Colorado Law Review

Hydraulic fracturing enables oil and gas operators to maximize hydrocarbon extraction from unconventional reservoirs. The increasing prevalence of fracturing generates robust debate and review of the environmental and economic impacts of the practice. An unbiased political dialogue of fracturing proves challenging. The technical complexity of the process and the divergent perceptions of local and state decision-makers foment regulatory tension. A division-of authority contest between the state government and home-rule cities ensues. In Colorado, state-level preemption gives courts a tool to invalidate local regulation of oil and gas activities where an operational conflict exists between the state and local law. However, …

Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

University of Colorado Law Review

No abstract provided.

What Would Zero Look Like? A Treaty For The Abolition Of Nuclear Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Nuclear disarmament-the comprehensive, universal, and permanent abolition of all nuclear weapons, pursuant to a verifiable, legally binding international agreement-has long been one of the most ambitious, controversial, and urgent items on the agenda for arms control. To date, however, most of the discussion of "getting to zero" has highlighted the political, military, technical and diplomatic dimensions of this complex problem, and there has been relatively little attention to the legal requirements for drafting such a novel treaty.

This Article fills that gap by offering two proposed agreements. The first, a non-legally-bindingfr amework accord, would be designedf or signature relatively soon …

More Than A Feeling: Emotion And The First Amendment, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

First Amendment law has generally been leery of government attempts to change the marketplace of emotions—except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked. There is no judgment, whether moral or otherwise, without emotions to guide our choices. Judicial failure to grapple with this reality has produced some puzzles in the law.

Part I of this Symposium contribution examines the intersection of private law, the First Amendment, and attempts to manipulate and control emotions. Only false factual statements can defame, not mere derogatory opinions. …

Artificial Meaning, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry into the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux …

Toward An Ethics Of Being Lobbied: Affirmative Obligations To Listen, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Lobbying in the U.S. today grows out of a historical legal and, eventually, Constitutional right to petition the government for redress of grievances. English kings, the English Parliament, and American colonial legislatures had incentives for not only recognizing the right but treating it fulsomely, as a means for communicating extensively with the widest possible range of those over whom kings, Parliament, and legislatures had or sought to have power. Because of drastic changes in circumstance, today's officials do not have this incentive. Financial and structural forces tend to narrow the range of people legislators and elected executives hear from. In …

Fiscal Federalism As Risk-Sharing: The Insurance Role Of Redistributive Taxation, John R. Brooks

Georgetown Law Faculty Publications and Other Works

In addition to funding government and redistributing income, a redistributive tax-and-transfer system, and a progressive income tax in particular, provides insurance against the risk of uncertain future income. By providing for high taxes for high incomes, and low taxes, exemptions, and transfers for low incomes, a progressive income tax lowers the volatility of potential after-tax income relative to a lump-sum tax. This insurance function is distinct from the redistributive function of the system, since it provides a direct risk-mitigation benefit to the taxpayer himself, rather than simply redistributing income from one taxpayer to another.

This article analyzes the question of …

The Global Health Security Agenda In An Age Of Biosecurity, Lawrence O. Gostin, Alexandra Phelan

Georgetown Law Faculty Publications and Other Works

Historically, the Oval Office has been a leader in global health assistance. From the President’s Emergency Plan for AIDS Relief (PEPFAR) and the President’s Malaria Initiative (PMI) under the Bush Administration, to the Global Health Initiative launched by President Obama in 2009. However, unlike PEPFAR and PMI, the Global Health Initiative met an untimely end with the launch of a bold new global health measure by the Obama Administration: the Global Health Security Agenda (GHS Agenda). The GHS Agenda aims to “accelerate progress toward a world safe and secure from infectious disease threats” through a US-led diplomatic collaboration with 30 …

Overrides: The Super-Study, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters …

The Rise And Fall Of Unconscionability As The 'Law Of The Poor', Anne Fleming

Georgetown Law Faculty Publications and Other Works

What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed "unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. …

Unsatisfying Wars: Degrees Of Risk And The Jus Ex Bello, Gabriella Blum, David Luban

Georgetown Law Faculty Publications and Other Works

Self-defensive war uses violence to transfer risks from one’s own people to others. We argue that central questions in just war theory may fruitfully be analyzed as issues about the morality of risk transfer. That includes the jus ex bello question of when states are required to accept a ceasefire in an otherwise-just war. In particular, a “war on terror” that ups the risks to outsiders cannot continue until the risk of terrorism has been reduced to zero or near zero. Some degree of security risk is inevitable when coexisting with others in the international community, just as citizens within …

Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.

A Writing Revolution: Using Legal Writing's 'Hobble' To Solve Legal Education's Problem, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

The attached article responds to a 2011 article by John Lynch, published in the Journal of Legal Education, that urged legal writing faculty to return to an outmoded and ineffective writing pedagogy, the “product approach,” on the grounds that it would make teaching legal writing easier. This article builds on the work of Carol McCrehan Parker and others interested in writing across the curriculum and argues that the only way to reduce legal writing’s “hobble” and to solve legal education’s problem is to create a six-semester writing requirement. The reason law students are graduating without adequate preparation for practice is …

Agency Enforcement Of Spending Clause Statutes: A Defense Of The Funding Cut-Off, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

This article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, …

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).

Regulating Sexual Harm: Strangers, Intimates, And Social Institutional Reform, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms—from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child—the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity. All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions. These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the …

Beyond Proximity: The Importance Of Green Space Useability To Self-Reported Health, May Carter, Pierre Horwitz

Research outputs 2014 to 2021

Access to parks and green spaces within residential neighbourhoods has been shown to be an important pathway to generating better physical and mental health for individuals and communities. Early research in this area often failed to identify specific attributes that contributed to reported health outcomes, with more recent research focused on exploring relationships between health outcomes and aspects of access and design. A mixed methods research project conducted in Perth, Western Australia examined the role that neighbourhood green space played in influencing residents' self-reported health status, and this paper identifies significant relationships found between perceptions of green space quality and …

Bulk Metadata Collection: Statutory And Constitutional Considerations, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of …

Sacred Trust Or Sacred Right?, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

This is the first chapter from The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child (Yale University Press, 2014.)

It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at …

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …

Advocates, Federal Agencies, And The Education Of Children With Disabilities, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

The aim of this essay, prepared for a symposium on dispute resolution in special education held at The Ohio State University Moritz College of Law in February 2014, is to highlight ways that advocates for children with disabilities can use federal agencies to improve the implementation and enforcement of federal laws protecting children with disabilities in schools—that is, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act as it relates to schools.

One can spend a lot of time engaging with the contemporary public conversation about the law surrounding …

Process, Practice, And Principle: Teaching National Security Law And The Knowledge That Matters Most, James E. Baker

Georgetown Law Faculty Publications and Other Works

The meaningful application of national security law requires a commitment to substantive knowledge, good process, and a capacity to cope (and indeed thrive) under the prevailing conditions of practice. This paper describes how and why to teach these three essential elements of national security law from an academic and practitioner perspective.

The paper starts with substantive law, placing emphasis not just on the breadth of knowledge and interpretive skills required, but also on the importance of depth, perspective, theory, purpose, history, and legal values in teaching the law. Next, the paper describes the importance of timely, meaningful, and contextual process, …

Uncovering The Reformation Roots Of American Marriage And Divorce Law, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

In 1639, Massachusetts Bay colonists pressed Governor John Winthrop to adopt a “body of laws” that would restrict the considerable power that “rested in the discretion of magistrates.” Having survived both the transatlantic voyage and the rigors of the new world in their quest to establish a religious utopia away from the demands of church and state in England, the colonists were understandably loath to give their local officials unchecked power. Winthrop offered several reasons why the leaders of the colony opposed the request: the colonists did not yet have enough experience to develop laws appropriate for their new circumstances, …