Law Commons^™

2014 International Trade Law Decisions Of The Federal Circuit, Jennifer S. Huber, Simon G. Courtman

American University Law Review

No abstract provided.

The Federal Circuit And Ultramercial:Software And Business Method Patents Tumble Further Down The Rabbit Hole, Mark Patrick

American University Law Review

No abstract provided.

The Status Of Nonstatus, Geoggrey Heeren

American University Law Review

Millions of unauthorized immigrants in the United States have no legal immigration status and live in constant fear of deportation. There are millions more who do have some sort of status, like lawful permanent residency, asylum, or a nonimmigrant visa. In between is the netherworld of nonstatus. Here live noncitizens who possess government documentation but few rights. They have no pathway to lawful permanent residence or citizenship and cannot receive most public benefits. If nonstatus is denied or revoked by a prosecutor or bureaucrat, there is no right to a hearing or an appeal. If the Executive Branch discriminates in …

The Boundaries Of Executive Discretion: Deferred Action, Unlawful Presence, And Immigration Law, Peter Margulies

American University Law Review

No abstract provided.

Bordering Persecution: Why Asylum Seekers Should Not Be Subject To Expedited Removal, Alvaro Peralta

American University Law Review

No abstract provided.

Shoot First, Ask Later: Constitutional Rights At The Border After Boumediene, Brittany Davidson

American University Law Review

Adopting Boumediene's functional approach in analyzing extraterritorial application of the United States Constitution at the U.S.-Mexico border will promote uniformity and provide guidance to courts and officials. Currently, courts are applying Verdugo-Urquidez's sufficient connections test, and different variations thereof permitting courts to arbitrarily decide who is entitled to constitutional protection in the absence of uniform precedent. Adopting Boumediene as the guiding test will not automatically trigger constitutional protection, instead, constitutional protection will only be granted if extending protection to an alien at the U.S.-Mexico border is justified based on the three-prong test.

U.S. Tax Imperialism In Puerto Rico, Diane Lourdes Dick

American University Law Review

No abstract provided.

The Harms Of The Benefit Corporation, Kennan El Khatib

American University Law Review

No abstract provided.

Reconceptualizing Managerial Judges, Steven Baicker-Mckee

American University Law Review

No abstract provided.

The Halfway Point Between Barbary Coast And Shangri-La: Extraterritoriality And The Viability Of The Economic Reality Method Post-Parkcentral Global Hub Ltd. V. Porche Automobile Holdings Se, Kaitlin A. Bruno

American University Law Review

No abstract provided.

Powerlessness Within A Budget-Driven Paradigm: A Grounded Theory Leadership Study From The Perspective Of Michigan Corrections Officers, Timothy Michael Eklin

Antioch University Dissertations & Theses

This study explored the lived-experiences of 15 correctional officers and 5 sergeants working in adult state-operated prison facilities in Michigan. In particular, this qualitative grounded theory study revealed the impact that budget driven decision-making had on the lives of correctional officers: its effect on institutional custody, security, and safety. The study finds that many recent policy changes resulted in a sense of powerlessness expressed by the participants of the study. Participants found themselves in a precarious position, situated in between the prison population and the administration. Having an understanding of how correctional officers make meaning of their work in relation …

“El No Murio, El Se Multiplico!” Hugo Chávez : The Leadership And The Legacy On Race, Cynthia Ann Mckinney

Antioch University Dissertations & Theses

“Chávez, Chávez, Chávez: Chávez no murio, se multiplico!” was the chant outside the National Assembly building after several days of mourning the death of the first President of the Bolivarian Republic of Venezuela. This study investigates the leadership of Hugo Chávez and his legacy on race as seen through the eyes and experiences of selected interviewees and his legacy on race. The interviewees were selected based on familiarity with the person and policies of the leadership of Hugo Chávez and his legacy on race. Unfortunately, not much has been written about this aspect of Hugo Chávez despite the myriad attempts …

The Young And The Restless: How The Twenty-Sixth Amendment Could Play A Role In The Current Debate Over Voting Laws, Nancy Turner

American University Law Review

The Twenty-Sixth Amendment is commonly understood as lowering the voting age to eighteen. However, a close look at the Amendment's language and history indicates that the Twenty-Sixth Amendment does more than just grant a right. Properly read, the Twenty-Sixth Amendment acts as an antidiscrimination law similar to the Fourteenth, Fifteenth, and Nineteenth Amendments. Accordingly, the Twenty-Sixth Amendment possesses the power not just to invalidate legislation that explicitly contravenes its purpose, but also to neutralize facially neutral legislation that was enacted with a discriminatory intent. Using Fourteenth and Fifteenth Amendment jurisprudence as a guide, this Comment proposes a framework for structuring …

Looking Inward: Domestic Policy For Climate Change Refugees In The United States And Beyond, Carey Degenaro

University of Colorado Law Review

No abstract provided.

The Landwarnet School, The Army Learning Model, And Appreciative Inquiry: How Is A Centralized Training Organization Improved By Introducing Decentralization?, Lisa Jayne Stamper

College of Graduate Studies: Theses & Dissertations

This exploratory, qualitative case study describes how a centralized training organization (LandWarNet School) was improved by introducing decentralization (Army Learning Model) toward “the best competitive position” or "sweet spot," defined by Brafman and Beckstrom (2006) as “enough decentralization for creativity, but sufficient structure and controls to ensure consistency” (pp. 189, 191). Any presence of the six chaordic elements of a decentralized organization, as described by Hock (1999), was also considered.

LandWarNet School (LWNS) trains approximately 6000 US Army Soldiers annually and is centrally organized. The new Army Learning Model (ALM) is a vision for a more decentralized training approach where …

What's The Harm Of Trademark Infringement?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

For decades, the concept of actionable trademark infringement has been expanding. Source confusion, reverse confusion, approval/affiliation confusion, initial interest confusion, post-sale confusion, endorsement confusion, and so on, all have won cases for plaintiffs. Whether or not the confusion cost the plaintiff any sales, or was in any way material to consumers, our concept of trademark infringement now encompasses it. These expansions occurred for reasons that seemed sufficient to courts at the time, when advocates offered theories about how all these kinds of confusion could cause harm to the trademark owner. Primarily, courts feared that non-competing uses would preclude trademark owners …

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 …

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 …

Conceptualizing Student Practice For The 21st Century: Educational And Ethical Considerations In Modernizing The District Of Columbia Student Practice Rules, Wallace J. Mlyniec, Haley D. Etchison

Georgetown Law Faculty Publications and Other Works

This article traces the history of the amendment process. It provides a short history of student practice rules and then, using the student practice rule in effect in the District of Columbia prior to the 2014 amendments, describes the various components of those rules that courts and bars across the nation have implemented to assist courts, advance legal education, and preserve advocates’ ethical obligations to clients. It then describes some of the comments to the proposed amendments offered by the District of Columbia Bar and other D.C. lawyers during the public comment period and the modifications to the District of …

The Americans With Disabilities Act At 25: The Highest Expression Of American Values, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Enacted in 1990, the Americans with Disabilities Act (ADA) is a watershed piece of legislation which enshrines in law a social promise of equality and inclusion into all facets of life, while offering an inspiring model that much of the world has come to embrace. This editorial launches JAMA’s theme issue on the 25th anniversary of the ADA by detailing the Act’s history, main provisions, and far-reaching impacts on health, providing a context for the three Original Investigations and six scholarly Viewpoints that make up the theme issue. The editorial begins with a discussion of the ADA’s history, highlighting …

Indonesia Has It Backward: It's Not E-Cigarettes That's The Problem But Smoking, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Indonesia has announced it will be banning e-cigarettes. But that would do nothing to reduce smoking, which should be the main target of those interested in reducing tobacco use deaths and harms. Rather than ban e-cigarettes, it makes more sense to regulate them effectively so that they can serve as a useful anti-smoking tool. The availability of e-cigarettes to smokers can also make much more aggressive anti-smoking strategies more practically and politically viable-–perhaps even paving the way for banning cigarettes, instead.

The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign …

Substitute Arguments In Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.

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 …

Community Lawyering: Introductory Thoughts On Theory And Practice, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

There are several fundamental questions that one might ask in seeking the meaning of the term "community lawyer." Albeit somewhat theoretical, the most basic questions involve delving into exactly what is meant by the term "community." For what, exactly, is the community-lawyer lawyering? Further, once a client has been identified, questions will arise about how the lawyer should relate to that client and about the role the lawyer ought to play in assisting the client to achieve its goals. There is a long and rich literature concerning the latter question but a fairly sparse body of legal writing on the …

What Can Be Done, If Anything, About The Dangerous Penchant Of Public Trust Scholars To Overextend Joseph Sax’S Original Conception: Have We Produced A Bridge Too Far?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the tendency of many legal scholars to overextend the scope of a previous scholar’s original idea—in this case, Professor Joseph Sax’s reconceptualization of the largely moribund common law public trust doctrine. Legal scholars are induced to write immoderately either to enhance their standing within the academic community or, more selflessly, to achieve law reform. These expansionist tendencies, however, are not without risk—a common law doctrine that becomes too unmoored from its historical shackles may lose the support of the courts that is required for its implementation. The Article examines whether a combination of academic norms and hortatory …

Why The Nsa Data Seizures Are Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Due to the unauthorized leaks of classified information, we have come to learn that the National Security Agency (NSA), an executive branch arm of the U.S. military, has established several data collection programs. In this article, I am not going to get into the details of these programs. Instead, I will limit my focus to what I consider to be the serious constitutional problem with any such program, regardless of the details: the fact that the NSA is demanding that private companies, with which virtually all Americans contract to provide their voice communications, turn over the records of every phone …

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 …