Law Commons^™

The Feminist Jurisprudence Of Jack Weinstein, Anita Bernstein

Faculty Scholarship

No abstract provided.

Constructing Autonomy, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Talking Points, Alex Stein, Jef De Mot

Faculty Scholarship

No abstract provided.

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Ebola, Quarantine, And Flawed Cdc Policy, Robert Gatter

All Faculty Scholarship

The CDC’s Interim Guidance for Monitoring and Movements of Persons with Potential Ebola Virus Exposure is deeply flawed because it disregards the science of Ebola transmission. It recommends that officials quarantine individuals exposed to the virus but who do not have any symptoms of illness, ignoring the fact that only those with Ebola symptoms can communicate the virus to others. Consequently, any quarantine order based on the Guidelines is surely unconstitutional and illegal under most states’ public health statutes — as exemplified by the State of Maine’s failed petition to quarantine Nurse Kaci Hickox in October 2014. This article examines …

What Patients With Disabilities Teach Us About The Everyday Ethics Of Health Care, Elizabeth Pendo

All Faculty Scholarship

In Healers: Extraordinary Clinicians at Work, by David Schenck and Dr. Larry Churchill, and in What PatientsTeach: The Everyday Ethics of Health Care, their follow-up with Joseph Fanning, the authors look at theeveryday experience of health care and the relationships that shape it. This article expands upon that inquiry by exploring the experiences and challenges of patients with disabilities and by exploring what patients withdisabilities can teach us about the everyday ethics of health care.

The authors of What Patients Teach provide a framework in which to focus on the everyday experience ofhealth care from the perspective of patients. This …

Training The Transactional Business Lawyer: Using The Business Associations Course As A Platform To Teach Practical Skills, Constance Z. Wagner

All Faculty Scholarship

Drawing on her own practice background as a business lawyer and her law school teaching experience, theauthor argues for the importance of introducing transactional lawyering skills into the law school course on business associations. She notes that business law practice is transactional in nature, but that the traditional method of teaching business associations centers on case law analysis. This litigation-focused approach misleads students about the nature of business law practice, which requires lawyers to act as problem solvers and planners and to engage in preventative lawyering. To bolster her argument, the author draws on some of the recent literature on …

Sick And Tired Of Being Sick And Tired: Putting An End To Separate And Unequal Health Care In The United States 50 Years After The Civil Rights Act Of 1964, Ruqaiijah A. Yearby

All Faculty Scholarship

Since the end of the Civil War in 1865, the U.S. health care system has been structured to be racially separate and unequal. Ninety-nine years later, the enactment of Title VI of the Civil Rights Act of 1964 (Title VI) was supposed to put an end to this racially separate and unequal health care system by mandating equal access to health care for all races. However, fifty years later, African Americans continue to receive separate and unequal treatment compared to Caucasians, in hospitals, nursing homes, and physician offices. As a result, racial disparities in health status and access to health …

Property And Political Community: Democracy, Oligarchy, And The Case Of Ukraine, Monica E. Eppinger

All Faculty Scholarship

Widening wealth gaps in Western democracies have brought new scrutiny to relationships between property and political community. For the prior quarter century, Western legal scholars have urged privatization around the globe as the key to a virtuous circle of "market democracy." This Article traces origins of the market democracy consensus to ideas that identify positive features of political community -- liberty, wealth, or democracy -- with private property ownership. Fieldwork in Ukraine, where Western privatization advice was followed at a time of founding a new polity, provides data to compare predictions with outcomes. Two unexpected figures -- the Oligarch and …

Our Uneasiness With Police Unions: Power And Voice For The Powerful?, Marcia L. Mccormick

All Faculty Scholarship

The police shooting of Michael Brown, and the other recent police shootings of black men and boys, gave rise to many important discussions about race, inequality, power, and policing. But one issue not as widely discussed was the the role and propriety of police unions. This Essay describes the history and uniqueness of public sector unions, such as police unions, and why they are both useful and problematic.

This Essay describes ways police unions might be used to help solve the current problems, such as helping to connect officers with the community. The Federal and State governments have provided recommendations …

Tools Of Ignorance: An Appraisal Of Deficiency Judgments, Alan M. Weinberger

All Faculty Scholarship

While achieving success as a major league catcher, Mike Matheny was preparing for a post-baseball career in real estate development. He could not have picked a worse time to pursue his aspiration. Matheny lost his accumulated savings and his family’s home after being held personally liable for a $4.2 million deficiency judgment following foreclosure of property he was unable to develop or market during the Great Recession. Matheny’s failure to succeed in real estate was the proximate cause of his return to baseball as manager of the St. Louis Cardinals. Matheny’s story provides the backdrop for examining the methods by …

Out Of The Black Box And Into The Light: Using Section 1115 Medicaid Waivers To Implement The Affordable Care Act's Medicaid Expansion, Sidney D. Watson

All Faculty Scholarship

What price Medicaid expansion? The Supreme Court's decision in National Federation of Independent Business (NFIB) v. Sebelius,' sparked intense debate about how the Secretary of Health & Human Services (HHS) would respond to pressure from recalcitrant states. Policy experts and Sunday-moming pundits predicted that Red States would demand Section 1115 waivers of federal Medicaid rules as the quid pro quo for implementing the Affordable Care Act's (ACA) Medicaid expansion that covers adults with incomes up to 133% of the federal poverty level (FPL). They prophesized that the Obama Administration, desperate to move implementation forward, would have little leverage in its …

The Supreme Court And The Rehabilitative Ideal, Chad Flanders

All Faculty Scholarship

Graham v. Fl,orida,¹ the Supreme Court's 2010 decision finding a life without parole sentence for a non-homicide crime committed by a juvenile "cruel and unusual' ' has rightly been recognized as a "watershed."² A major focus of the extensive commentary on the case has been on its application of the "evolving standards of decency'' test to a punishment outside of the death penalty, and to whether Graham might apply also to adults.³ Equally important in Graham, but subject to comparatively less critical attention,⁴ is the central role that the rehabilitative theory of punishment plays in its …

The Benefits Of Integrating Entrepreneurship Into Business Associations, Ann M. Scarlett

All Faculty Scholarship

Integrating entrepreneurship into Business Associations through an emphasis on start-up and small businesses is worth sacrificing some coverage of public corporations. Attorneys are much more likely to work with clients who are self-employed or own small businesses, and thus the legal principles covered in a Business Associations course have more relevance to students when focused on these likely clients. Students are also able to more easily understand the legal concepts presented when focused on start-up and small businesses. Incorporating entrepreneurship also has the advantage of introducing law students to the cross-curricular nature of this practice area and at a time …

Nuclear Arms Control By A Pen And A Phone: Effectuating The Comprehensive Test Ban Treaty Without Ratification, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This Article examines three crucial national security problems concerning the testing and proliferation of nuclear weapons, and offers three novel solutions. The three urgent problems are: (1) the fact that the Comprehensive Nuclear Test Ban Treaty (CTBT), the most important multilateral nuclear arms control agreement of the past forty years, may never enter into force; (2) the fact that without CTBT, the global non-Proliferation regime is in trouble, too, as the fragile consensus underpinning the world's efforts to restrict the spread of nuclear weapons threatens to unravel; and (3) the fact that the United States is peculiarly disabled, due to …

Red-Teaming Nlw: A Top Ten List Of Criticisms About Non-Lethal Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Critics of non-lethal weapons (NL W) have asserted numerous complaints about the concepts, the Department of Defense research and development efforts, and the pace of innovation in the field. These critiques challenge the cost of the programs, their consistency with international law, the adverse public reaction to some of the devices, and the dangers of proliferation, among other points. This article summarizes the various assessments, in form of a "top ten list" of criticisms, and evaluates their weight. The author concludes that some of these points of objection have merit, but overall, the NLW enterprise is worthy of continuation and …

Free To Be You And Me? Copyright And Constraint, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Joseph P. Fishman’s Creating Around Copyright advances a provocative thesis: some restrictions on creativity can spur the development of additional creative solutions, and (some level of) copyright might be one of those restrictions. If Picasso was right that “forcing yourself to use restricted means is the sort of restraint that liberates invention,” then being forced by law to use restricted means might do the same thing, ultimately leading to more varied and thus more valuable works.

At the outset, it’s important to know the baseline against which we ought to evaluate Fishman’s claims. Most copyright restrictionists, of whom I count …

Content, Purpose, Or Both?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Most debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of …

Steps Towards An Alignment Of Intellectual Property In South-South Exchanges: A Return To Trips, Ana Santos Rutschman

All Faculty Scholarship

Some of the most instrumental players in shaping the course of intellectual property policies in the South are the so-called BRIC countries. The acronym BRIC originally encompassed Brazil, Russia, India and China. In 2011, South Africa formally joined the BRIC countries, which are now referred to either by the original acronym or by BRICS. While categorizations like BRICS attract a fair amount of criticism, with questions surrounding the criteria used to aggregate disparate economies, the concept of emerging economies in the South seeking to advance similar development agendas has become accepted currency in multiple fields, from institutional cooperation to financial …

The Injustice Of Inclusion And Fair Opportunity: Exploiting Children In Medical Research For The Benefit Of An Unworthy Society, Ruqaiijah Yearby

All Faculty Scholarship

The history of pediatric medical research has been characterized as a history of child abuse. Usually, the debate regarding the use of children in medical research has centered on questions of Autonomy (informed consent) and Beneficence (the best interest of the child based on a benefit risk analysis). The debate has rarely focused on the question of which children should participate in medical research by discussing the legal principle of Justice (prohibits use of vulnerable populations for medical research who are already overly burdened for medical research unrelated to health issues affecting them and requires that populations who participate in …

Called To Serve: Five Habits Of Effective Board Members, Dana M. Malkus

All Faculty Scholarship

In any given year, a single nonprofit organization has the potential to positively impact hundreds of lives. Given their training, passion, and community standing, young lawyers are often a great asset for such organizations. At the same time, nonprofit organizations can provide excellent training and networking opportunities for young lawyers.

With a relatively modest investment of time, you can provide the kind of board service that brings substantial impacts for our communities. Whether you currently serve on a board or are simply considering doing so in the future, developing the following five habits will help you more effectively advance your …

A Vast Image Out Of Spiritus Mundi: The Existential Crisis Of Law Schools, Jeremiah A. Ho

All Faculty Scholarship

In her recent book, Teaching Law: Justice, Politics, and the Demands of Professionalism, Robin L. West articulates that the crisis is not merely as the The New York Times and other media outlets have described it — not entirely about the faulty business practices of law schools or the lack of practice-oriented teaching in law classrooms. Instead, the crisis lies at the existential core of law schools. The original nineteenth-century set-up of the American law school and that model’s continued existence today have contributed to an identity crisis for law schools, revealing its major incompatibility with how the law is …

The Cowboy Code Meets The Smash Mouth Truth: Meditations On Worker Incivility, Michael C. Duff

All Faculty Scholarship

This symposium essay argues that workers must face up and wake up to the emerging real world of perpetual employment vulnerability. Clinging to the faith that those who govern us will abide by simple moral codes simply will not do in this world. Workers must resist forces promoting vulnerability and internalize a steely and clear-eyed ethic of self-defense in response to the smash mouth truth of this challenging new environment. Workers and dissidents must not shrink when their frank opposition to the status quo is cabined and marginalized as “incivility.” The law — and I focus in the essay on …

Function, Form, And Strawberries: Subverting Langdell, Jeremiah A. Ho

All Faculty Scholarship

So why do law schools place skills instruction below the dissemination of legal knowledge even though it is the practice of law that lawyers are engaged in doing and not just the mere knowing of it? Both should be equally significant. Although law teaching methodologies have shifted somewhat to accommodate the changing cognitive adaptations of the human mind in this age of digital technology, law instruction in classrooms still possess a deeply-rooted basis in legal formalist considerations of the law from the 19th century that displaces skills instruction for the advancement of the legal knowledge. Consequently, in order to further …

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.

Previous to Crawford, under Ohio v. …

Arrests As Regulation, Eisha Jain

Georgetown Law Faculty Publications and Other Works

For some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone—regardless of whether they result in conviction—can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors …

The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.

But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".

Part I of this article quarrels with the Chief Justice's assertion that the …

When Does Copyright Law Require Technology Blindness? Aiken Meets Aereo, Yvette Joy Liebesman

All Faculty Scholarship

Within the Copyright Act, innovation and technological advances are the bases for the enactment or amendment of many sections. Technology is often fundamental to the language of the section, and the underlying technology matters even when it is paired with a technology-neutral section. And because technology matters, how it functions could be essential in resolving a copyright infringement dispute.

One such provision, 17 U.S.C. § 110(5), allows small businesses to “publicly perform” copyrighted music via a radio, as long as certain conditions regarding the equipment used are met. Only small businesses are eligible, and the proprietors can only use systems …

Comment On Prof. Imwinkelried's "Formalism V. Pragmatism In Evidence: Reconsidering The Absolute Ban On The Use Of Extrinsic Evidence To Prove Impeaching Untruthful Acts That Have Not Resulted In Conviction": Just What Evidence Of Witness Misdeeds Does Federal Evidence Rule 608(B) Exclude?---Imwinkelried Vs. Rothstein, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Prof. Edward Imwinkelried, one of the country’s most renowned Evidence scholars, in a recent article in this journal, perceptively identifies three specific examples of evidence of a witness’s prior unconvicted-for misconduct which he correctly believes should be admissible to impeach the witness’s credibility in the discretion of the trial judge:

1. Evidence of demonstrably false previous accusations of rape against the present defendant by the complaining witness in a rape prosecution (assuming the rape shield would not exclude) which the witness will not admit to during cross examination;

2. Documentary evidence proving an unrelated misdeed of a testifying witness clearly …