Law Commons^™

The Prohibition Of Force Is The First Principle Of International Humanitarian Law, Mary Ellen O'Connell

Journal Articles

This article tracks the decline of respect for the prohibition of force, IHL, and human rights law. At the same time, it will clarify the inter-relationship of the three bodies of international law relevant to armed conflict. The article also considers why presidents first began to “abandon peace.” The evidence indicates that a major reason involves the influence of realist political theory. Realism asserts that national security is attained by amassing and demonstrating superior military capability. A president who follows the theory will defy the law against the use of force. Following realism is also at odds with the empirical …

The Object Of Interpretation, Francisco J. Urbina

Journal Articles

This Article provides an account of the object of legal interpretation. It examines various potential objects: text, lawmaking choice, practice, and order. The Article argues for a pluralist conception of the object of interpretation, according to which all of these alternatives are possible objects. In making this argument, the Article puts forth an account of the nature of the object of interpretation. The object of legal interpretation is, in essence, what is treated as a source of law, a fact that is recognized as generating law. As such, which alternative is exactly the object of interpretation in a given context …

Holding The Line On Academic Freedom In Law School Clinics, Ty Alper, Praveen Kosuri, Beth Lyon, Alicia E. Plerhoples, Laura Riley, Robin Walker Sterling

Georgetown Law Faculty Publications and Other Works

Since the emergence of modern clinical legal education, law school clinics have periodically faced political interference in their selection of clients and cases, interference that threatens clinics’ essential dual missions of training practice-ready lawyers and providing legal services to marginalized clients who would otherwise lack representation. While such pressure is not new, contemporary threats differ in scale and institutional form. Today, funding, oversight, and enforcement mechanisms are weaponized in an attempt to discipline universities, heightening institutional anxiety and prompting some universities to contemplate preemptive constraints on clinic autonomy in the name of risk management and reputational protection. This shift to …

A Trusteeship Theory Of Pro Bono: Versions And Perversions, David Luban

Georgetown Law Faculty Publications and Other Works

This chapter develops a trusteeship justification of pro bono, arguing that lawyers, as trustees of a public legal system created through democratic self-authorship, have a moral obligation to help address the persistent justice gap affecting persons of limited means. It evaluates multiple forms of pro bono — including voluntary, mandatory, low bono, and state-compelled service — evaluating how well each aligns with the trusteeship model. The chapter contrasts the trusteeship theory with, and criticizes, two alternative justifications for pro bono: presumed lawyer consent rooted in professional tradition and a quid pro quo based on state-authorized privileges. It concludes by distinguishing …

Outside Counsel Guidelines: Power, Ideology, And The Evolution Of The Corporate Bar, Bruce A. Green, Eli Wald

Faculty Scholarship

Outside Counsel Guidelines (“OCGs”), terms of the lawyer–client relationship imposed by corporations, are a significant development in the practice of law by large corporate law firms (“BigLaw”). Among the most controversial OCGs are those that expand on law firms’ fiduciary obligations, thereby restricting their future clientele. The organized bar maintains that rules of professional conduct should restrict lawyers’ acquiescence to these OCGs because they limit clients’ access to legal services and undermine lawyers’ independence without advancing corporate clients’ legitimate interests.

This Article shows why the bar’s effort has (very recently) deservedly failed: corporate clients have a legitimate interest in demanding …

Price Drop Damages, Vincent S.J. Buccola, Adriana Z. Robertson

Coase-Sandor Institute for Law & Economics Research Paper Series

Assessing damages is often hard. When a reference asset–like stock–that is affected by misconduct trades in a liquid market, there is an appealing shortcut: price drop damages. The logic is simple: a court can leverage the fact that the price of this asset will reflect the consensus view among market participants of harm caused by the misconduct. But because market prices also reflect the expected value of any legal remedy, price drop damages are biased. We develop a simple model that allows us to characterize the magnitude and direction of this bias. We show the price drop damages understate harm …

Valuing Future Lives, Daniel J. Hemel, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

Federal regulation often involves a tradeoff between monetary costs in the present and life-saving benefits in the future. A central question in regulatory cost-benefit analysis is how to assign a present dollar value to future lives so that future lives and present dollars can be compared. For regulations that are projected to prevent deaths years or decades down the road, agencies make two key analytical moves. First, they adjust the value of a statistical life upward to reflect the fact that society’s willingness to pay to save lives will rise as people become wealthier in the future. Second, they discount …

Finding Debtor's Counsel, Anthony Casey, Emma Lotts

Coase-Sandor Institute for Law & Economics Research Paper Series

In this Essay, we explore the question of how to assess the independence of debtor’s counsel in Chapter 11. The question has arisen in recent high-profile bankruptcy cases, attracting renewed attention from commentators. We examine these cases and revisit the unique role that debtor’s counsel serves.

From this analysis, a few guiding principles emerge for determining independence and managing conflicts that may arise. First, consistent with the rules outside of bankruptcy, sophisticated parties are capable of waiving conflicts and should be free to do so when their interests alone are affected by the conflict. Second, the possibility of conflicts—both real …

Conspiracy And Social Movements, Steffen Seitz

Michigan Law Review

Conspiracy prosecutions of social movements are on the rise. From anti-“Cop City” protesters in Atlanta to pro-Palestinian protesters in California, prosecutors are increasingly wielding conspiracy law to suppress social movements. This development is troubling. Social movements have long served as vital engines of democratic self-governance; they crystallize issues, foster public discourse, and mobilize citizens. Yet conspiracy law endangers these movements— and thus democracy—by targeting what makes them work: public expression and social ties between activists.

This Article makes three significant contributions to our understanding of this threat. First, it demonstrates that a charge of conspiracy requires remarkably little—just the appearance …

Leaning Into Absence: Lessons From Kony, Mark A. Drumbl

Scholarly Articles

This article begins with the confirmation of charges decisions undertaken by the International Criminal Court in the Kony case. These proceedings struggled with the reality of in absentia. This article addresses the high absentee rate among individuals against whom the International Criminal Court (ICC) has issued arrest warrants and notes the stark presence of absence in the ICC’s work as well as within the enforcement of international criminal law at large. This article suggests that international criminal lawyers lean into the prevalence of absence and reboot predominant collective thinking. One path forward is to truly and warmly embrace transitional …

Table Of Contents

Touro Law Review

No abstract provided.

Dan Subotnik—Three Encounters And One Strong Memory, Honorable Robert S. French

Touro Law Review

No abstract provided.

Submission Of Michael B. Mukasey, Honorable Michael B. Mukasey

Touro Law Review

No abstract provided.

Dan Subotnik Kept It Real, John Mcwhorter

Touro Law Review

No abstract provided.

Rescued Before He Was Born – Dan Subotnik’S Journey In Utero Out Of Nazi-Occupied Europe, Olivia Mattis

Touro Law Review

No abstract provided.

Our Loss, But Dan’S As Well, Richard Klein

Touro Law Review

No abstract provided.

Remembering A Dear Friend And Colleague, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Professor Dan Subotnik, Nancy Fox

Touro Law Review

No abstract provided.

Eulogy For Daniel Subotnik דניאל עזרא בן אליעזר ואהובה Died–March 8 / 29 Adar 1, 57, Rabbi Wayne Franklin

Touro Law Review

No abstract provided.

Send In The Fashion Police!!!, Martin D. Goodman, Miriam Goodman

Touro Law Review

No abstract provided.

Daniel Ezra Subotnik (1942-2024) Obituary

Touro Law Review

No abstract provided.

Can We Talk—Really Talk—About Critical Race Theory? What A Game For All Ages Can Teach Us, Dan Subotnik

Touro Law Review

This essay may shock many readers. What it tries to do is look more closely than usual at the underpinnings of American racial discourse in the hope of leaving its readers, by its end, more willing than before to speak openly and listen carefully to people who disagree with them on the fraught subject of race. Wouldn’t many of us academics like to engage in a more open-minded sort of interracial conversation with a greater variety of our peers than we usually do? And yet it never seems to happen. Do any of us, black or white, feel we can …

A Long, Deep, And Unbreakable Friendship, Henry Ramer

Touro Law Review

No abstract provided.

Knowing Danny, Suzanne Darrow-Kleinhaus

Touro Law Review

No abstract provided.

Son Of Orwell, Chesterton, And Mill, Stephen B. Presser

Touro Law Review

No abstract provided.

Dan Subotnik: Teacher, Scholar, And Friend, Rena C. Seplowitz

Touro Law Review

No abstract provided.

In Memoriam: Professor Daniel Subotnik—A Personal Tribute, Eric M. Pelz

Touro Law Review

No abstract provided.

Reflections On An Exemplary Life: Professor Dan Subotnik, Eva E. Subotnik

Touro Law Review

No abstract provided.

For Daniel Ezra Subotnik, Theodore Silver

Touro Law Review

No abstract provided.

Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.

Touro Law Review

In 2021, I published an article arguing that semi-automatic rifles and semi-automatic handguns, among other weapons, could be most effectively regulated by defining the “ordinary military equipment” that the states’ militia members were expected to produce in the event they were called to service. I based my argument on the rationale employed by the United States Supreme Court in its 1939 decision in United States v. Miller, which upheld the National Firearms Act of 1934.