Law Commons^™

Political Affirmative Action, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

In the Supreme Court’s most recent affirmative action decision—Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College—the Court wrongly continued to believe that it has a role to play in determining the constitutionality of affirmative action. Where the Constitution lacks a legal standard that is sufficiently precise to provide meaningful constraint on the exercise of judicial discretion, questions concerning proper interpretation of that standard are what Marbury v. Madison deemed to be “in their nature political” and therefore “only politically examinable.” In such cases, the Constitution simply means what the political branches of government …

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …

Whom Do Prosecutors Protect?, Vida Johnson

Georgetown Law Faculty Publications and Other Works

Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.

This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …

Morrison’S Flawed “Focus” Test And The Transnational Application Of The (Misinterpreted) Wire Fraud Statute, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Federal prosecutors' mantra is “when in doubt, charge wire fraud.” Section 1343 can be applied to any scheme to defraud--a capacious term that encompasses everything from computer scams to bribery and smuggling--in which a wiring (by phone, text, internet communication, or the like) can be identified. Given the explosion of transborder criminality--especially that conducted by wire--the geographic scope of the statute is of great practical importance. This Article resolves a circuit split by applying the Supreme Court's presumption against extraterritoriality and concluding that nothing in § 1343 rebuts that presumption. It then attempts to answer the critical question of what …

The Persistent Public Health Emergency, Yael Zakai Cannon

Georgetown Law Faculty Publications and Other Works

May 11, 2023 was ostensibly a day of celebration. With infections and deaths from COVID-19 down, the federal government announced the end of the official Public Health Emergency three years after its initial declaration. But the conclusion of the Public Health Emergency also signaled the termination of unprecedented health protection measures—outside the realm of healthcare—such as eviction and utility shutoff moratoria and emergency rental and utility assistance. These COVID-era measures successfully cut eviction filings nationally by more than half and provided people in many jurisdictions with the protections and assistance needed to maintain their electricity, heat, water, and gas. Now …

Bibliography For "Keeping The Rhythm Of Creativity: Celebrating The Performing Arts And Intellectual Property", Isabella Piechota, Arianna Tillman, Kalea Brown, Katherine Roth

Library Displays and Bibliographies

A bibliography created to support a display about the performing arts and intellectual property at the Leatherby Libraries during April 2024 at the Leatherby Libraries at Chapman University.

Inadequate Adequacy?: Empirical Studies On Class Member Preferences Of Class Counsel, Alissa Del Riego, Joseph Avery

Utah Law Review

Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received …

The Right To Violence, Sean Hill

Utah Law Review

Scholars have long contended that the state has a monopoly on the use of violence. This monopoly is considered essential for the state to assure the safety and security of its citizens. Whereas public officers have the broadest authority to deploy violence, in order to make arrests or to inflict punishment, private citizens allegedly have severe restrictions on their use of force. Specifically, the state is said to only authorize private violence when civilians face an imminent threat of unlawful force or when civilians are attempting to prevent a crime.

Yet the state explicitly authorized private violence against enslaved people …

First Amendment Fetishism, John Kang

Utah Law Review

This Article has not argued for the propriety of restricting speech as a good in its own right. Rather, it argues the Supreme Court has gone too far in protecting the right of highly offensive speech. Instead of weighing the value of such speech in relation to its harms on the community, the Court has eagerly embraced a fetishistic attitude toward the right of speech. This Article has suggested, however, that said fetishism is inconsistent with the original understanding of the right of speech. This Article culled the insights provided by the original understanding of the right of speech and …

Circumventing The Fourth Amendment: The Unconstitutional Nature Of Geofence Warrants, Shelby Stender

Utah Law Review

Federal and state law enforcement agencies are using a new tactic for gathering evidence: geofence warrants. These warrants allow law enforcement to gather historical location data collected by third party companies including Google, Facebook, Amazon, and Apple. Armed with a geofence warrant today, law enforcement agencies can track the previous location of an individual at any point from the moment they acquired a cell phone—so long as the location history is turned on. The tactic has grown in popularity since 2019 and has been used to uncover suspects in cases where police had few leads. Troublingly though, the tactic has …

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Theses

Consumer's right to withdraw from the electronic contract

A Comparative Study

Technological development has significantly changed how people communicate, particularly in concluding contracts. Sales contracts, often executed through modern communication methods and the internet, have become especially common due to their speed. This convenience often leads consumers to accept contracts hastily, relying only on photographs and descriptions provided by sellers. These descriptions may be inaccurate, or consumers may be misled by false advertisements, as these contracts are made remotely without physical interaction.

The consumer, a vital part of the economic process, increasingly faces assaults on their rights, particularly in electronically …

Cake-And-Eat-It-Too Clauses, Tanya J. Monestier

Journal Articles

Imagine this: You have signed on the dotted line to purchase a home for $500,000. You have put down an earnest money deposit of $25,000. Right before closing, you find out that your bank will not provide the financing you thought you had secured. You can no longer afford to purchase your dream home. You are coming to grips with the reality that you are going to lose $25,000, which comprises the bulk of your life savings. Then you hear from the seller, telling you that they are going to come after you for $100,000 in “actual damages”—the amount the …

The Rhetoric Of Abortion In Amicus Briefs, Jamie R. Abrams, Amanda Potts

Missouri Law Review

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage …

Liking, Linking, And Tweeting: Mental Health, Mentoring, And Professional Responsibility In The Age Of Social Media, B. Summer Chandler

Missouri Law Review

It should come as no surprise that interaction through social media and other forms of technology mediated communications (“TMC”) has grown dramatically over the last two decades. The Covid-19 pandemic exacerbated this turn to technology. Communicating through some form of technology, rather than face-to-face, necessarily changes the methods we use to communicate (a smile emoji in a text replaces a smile you might give in a face-to-face discussion, for example). Studies support, however, that, in addition to changing the means by which we communicate, our increased reliance on TMC may also be changing us. Among other things, some studies show …

Rigor Or Reach? Strictness Or Scope?: The Continuing Battle Over The Parameters Of The Supreme Court’S Daubert/Kumho Reliability/Validation Test For The Admissibility Of Expert Testimony, Edward J. Imwinkelried

Missouri Law Review

Expert testimony is offered at the overwhelming majority of trials conducted in the United States. In many of these cases, it is absolutely essential for the plaintiff or prosecutor to introduce such testimony. The plaintiff may need expert testimony to prove general causation in a toxic Tort case, and similarly the prosecutor may need to resort to expert testimony to establish the accused’s identity as the perpetrator of the charged crime. For decades, the proponents of expert testimony have mounted campaigns to lower the evidentiary barriers to expert testimony. For most of the 20th century, the governing American test for …

On The Hook: Venue, Vicinage, And Double Jeopardy’S Relationship With Modern Data Crimes, Cody Deterding

Missouri Law Review

Every fisherman has a place he holds dear. Whether it be a mountain creek small enough to hop across or a reef in the Gulf of Mexico, we all have a place where “the big one” defeated us. Conversely, we all have a spot in which we emerged victorious, spurring feelings of elation. We all have memories so compelling that we feel the need to share our stories around the dinner table and remind friends how much they missed out on that day. Ingrained in my memory is the flash of a twenty-inch brown trout sipping a fly from the …

“Uphill . . . Both Ways!” The Issues With Missouri’S Compulsory Attendance Legislation, Amaris Garber

Missouri Law Review

“When I was a kid, I walked to school uphill . . . both ways!” Hidden in this adage is a kernel of truth regarding America’s relationship with education: for many Americans, school attendance is often difficult for more reasons than just the early morning struggle of getting out of bed. Prior to 2020, 15% of students missed at least 10% of the school year. In the wake of the COVID-19 pandemic, absenteeism increased at worrisome rates; in the 2021-2022 school year, more than 25% of students missed at least 10% of the school year. In Missouri specifically, chronic absenteeism …

The Judge-Made Constitutional Penumbra: Why Anti-Bds Laws Unavoidably Implicate The First Amendment And How The Eighth Circuit Avoided Them, Tasneem Huq

Missouri Law Review

Freedom of speech and assembly, as protected by the First Amendment, has long been a defining character of “The Land of the Free.” Much of American history has been influenced by actions deemed protected by the First Amendment. Such protection offers American citizens power that the Constitution otherwise reserves for the three government branches: the power to change the law which all American citizens live under and by which they must abide. A commonly recognized form of expression protected by the First Amendment is participation in non-violent protests. The Palestinian advocacy movement is one such movement that utilizes this form …

Time For An Audible: Possible Solutions For Nil Collectives Seeking Tax-Exempt Status Following Irs Memo, Austin Siener

Missouri Law Review

The United States Supreme Court’s decision in NCAA v. Alston sent shockwaves throughout the world of college sports. The Court’s recognition of student athletes’ abilities to profit from their name, image, and likeness (“NIL”) revolutionized the landscape of collegiate athletics. Shortly thereafter, the National Collegiate Athletic Association (the “NCAA”) adopted its Interim NIL Policy, explicitly allowing opportunities for companies, entities, or individuals to pay student athletes for use of their NIL. Unsurprisingly, athletes capitalized on the opportunities immediately. For example, Hanna and Haley Cavinder, former women’s college basketball players with millions of followers on social media, completed an NIL deal …

Legal Issues In Oceanic Transport Of Carbon Dioxide For Sequestration, Carolina Arlota, Michael B. Gerrard, Pria Deanna Mahadevan

Faculty Scholarship

A number of large facilities intended for the permanent sequestration of carbon dioxide are being developed in the United States. Several of them will be located in Texas and Louisiana on or near the coast of the Gulf of Mexico, making them easily accessible to ships. At the same time, there is substantial interest in Europe in installing equipment to capture carbon dioxide from certain industrial operations before it is emitted into the atmosphere, but currently there are inadequate facilities existing in Europe to sequester much of this carbon dioxide. Therefore, there is interest in the possibility of using ships …

The Missing Half: Revisiting Monetary Remedies To Redress Racial Segregation, Olatunde C.A. Johnson

Faculty Scholarship

This Essay considers whether courts should have awarded monetary remedies in housing desegregation cases. By examining the relief awarded in public housing desegregation cases brought in United States federal courts between 1966 and 1994, this Essay reveals the limitations of the almost exclusive reliance on forward-looking integration relief as a remedy. The Essay argues that there is a “missing half” of remedies that courts never awarded: compensatory damages for the loss of wealth and opportunity caused by housing segregation. Forward-looking remedies that promised integration have often gone unfulfilled. Understanding these “missing” damages is crucial given recent Supreme Court rulings on …

The Judicial Method In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

This Essay, delivered as the 2023 Brace lecture, examines the role of the real unsung heroes of the modern U.S. copyright system: the federal judiciary. For the longest time, discussions of copyright policy and reform in the U.S. have altogether neglected the role that courts are meant to play in working copyright’s substantive and procedural rules. These discussions have instead assumed a norm of passivity from courts, who are presumed to either engage in a mechanical application of the statute’s text to decide disputes or instead make the law incrementally in common law style. In this Essay, I argue that …

Art ©Aches, Richard H. Chused

Articles & Chapters

No abstract provided.

"Silent Revolution": The Rockefeller Foundation's Invisible Influence On The Model Penal Code, Daniel Butler Friedman

Articles & Chapters

For over a hundred years, rich families have been channeling their wealth through private foundations to remake American society, but their immense impact on the law is still poorly understood. This article begins to fill that gap by studying the almost completely unknown origins of one of the most important reforms in the history of American criminal law: the Model Penal Code ("MPC"). To show how the MPC was influenced by its primary funder this article presents unpublished documents from the archives of two of the most important private organizations in American law: the American Law Institute ("ALI") and the …

The Ebb, Flow, And Twilight Of Presidential Removal, Jed Handelsman Shugerman

Faculty Scholarship

Just as the Roberts Court has been expanding presidential authority to its historic maximum, recent legal scholarship has shown that the Founders intended, to paraphrase Justice Jackson’s famous Youngstown concurrence, a much lower ebb or at least an ambiguous twilight about “executive power,” in contrast to originalists’ unsupported certainties.

Judge Merritt And Sexual (Mis)Conduct In The Workplace, Maria O'Brien

Faculty Scholarship

Judge Merritt's judicial career coincided with several major cultural and legal workplace shifts that continue to affect millions of Americans to this day. The evolution of legal protections against numerous forms of workplace sexual harassment surely revolutionized our understanding of the centrality of work, particularly the right of women to be free from unwelcome conduct on the job. The legal literature dealing with workplace sexual harassment is vast 172 and cannot be recounted here in detail. Instead, this essay describes Judge Merritt's fidelity to both the letter and spirit of this important body of Title VII173 jurisprudence. It traces the …

The Last Colony Of The Mind: Narrative, Legal Advocacy, And The Decolonization Of Legal Knowledge, Ayodeji Kamau Perrin

Faculty Scholarship

Philippe Sands’ The Last Colony¹ tells the story of how Chagos Islanders won the right to return to the lands of their birth through a 2019 Advisory Opinion of the International Court of Justice (ICJ).² In 1965, while the United Kingdom stood in the midst of conceding to the independence claims of myriad anti-colonialists throughout its imperial holdings, it took the anachronistic step of creating a colony—the British Indian Ocean Territory (BIOT).³ In flagrant violation of UN Resolution 1514,⁴ the United Kingdom detached the Chagos Archipelago from the colony of Mauritius. And between 1967 and 1973, …

Ogoni Activism And Access To Remedy: Business And Human Rights From The Bottom Up, Ayodeji Kamau Perrin

Faculty Scholarship

Do court victories result in social change? Can victories in court result in losses outside of court? If victories in court are no guarantee of victory outside of court, how much worse are court defeats? This Article explores these questions in part through analyzing Ogoni litigation against Royal Dutch/Shell. In 2002, Esther Kiobel and several co-plaintiffs tried to hold Royal Dutch/Shell accountable for its role in the death of Kiobel’s husband and for wider corporate abuses and related state human rights violations in Ogoniland. But in 2013, a unanimous United States Supreme Court held that the Alien Tort Statute (ATS) …

Tort Theory And The Restatement, In Retrospect, Keith N. Hylton

Faculty Scholarship

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared …

Ask The Professor: How Has The Recent U.S. Supreme Court Opinion In Murray V. Ubs Securities Provided Much Needed Protection To Whistleblowers?, Ronald Filler

Articles & Chapters

No abstract provided.