Legislation Commons^™

H.R. 2432, Paperwork And Regulatory Improvements Act Of 2003: Testimony Before The H. Comm. On Government Reform, 108th Cong., July 22, 2003 (Statement Of Lisa Heinzerling, Prof. Of Law, Geo. U. L. Center), Lisa Heinzerling

Testimony Before Congress

No abstract provided.

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. …

The Art Of Legislative Lawyering And The Six Circles Theory Of Advocacy, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A "legislative lawyer" is a person who exists in Washington, D.C., and in almost every city and state in this country where legislation and administrative regulations are developed. But most people do not know who that person is or what that person does. In fact, most advocacy organizations that should be hiring legislative lawyers have no idea who a legislative lawyer is.

The author coined the term "legislative lawyer" when she created a Federal Legislation Clinic at the Georgetown University Law Center in Washington, D.C. over a decade ago. The author needed to explain to her faculty colleagues what type …

The Joy Of Teaching Legislation, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

I am going to talk about teaching legislation, a class I have taught several times at Georgetown University Law Center, as well as teaching a federal legislation clinic, which I founded ten years ago at the law school. Bill Eskridge has done a wonderful job laying out the different ways one can teach a course in legislation; you will see that my approach focuses on teaching the skills that, as Bill also correctly noted, all young lawyers will need when they start practicing.

Applying The War Powers Resolution To The War On Terrorism: Hearing Before The S. Comm. On The Judiciary, 107th Cong., Apr. 17, 2002 (Statement Of Jane E. Stromseth, Prof. Of Law, Geo. U. L. Center), Jane E. Stromseth

Testimony Before Congress

No abstract provided.

Brief For The Respondent, Chevron U.S.A. V. Echazabal, No. 00-1406 (U.S. Feb. 1, 2002), Chai R. Feldblum

U.S. Supreme Court Briefs

No abstract provided.

Brief For Amici Curiae Aarp Et Al., United States Department Of Housing And Urban Development V. Rucker Et Al., Nos. 00-1770 & 00-1781 (U.S. Dec. 20, 2001), Peter B. Edelman

U.S. Supreme Court Briefs

No abstract provided.

Protecting Constitutional Freedoms In The Face Of Terrorism: Hearing Before The S. Comm. On The Judiciary, 107th Cong., Oct. 3, 2001 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Privacy In The Commercial World: Online Consumer Privacy Concerns: Hearing Before The H. Subcomm. On Commerce, Trade, And Consumer Protection Of The H. Comm. On Energy, 107th Cong., Mar. 1, 2001 (Statement Of Chai R. Feldblum, Prof. Of Law, Geo. U. L. Center), Chai R. Feldblum

Testimony Before Congress

No abstract provided.

Brief For Respondents Massachusetts And New Jersey, American Trucking Associations, Inc. V. Browner, Nos. 99-1257 & 99-1426 (U.S. Sep. 11, 2000), Lisa Heinzerling, Richard J. Lazarus

U.S. Supreme Court Briefs

No abstract provided.

Secret Evidence Repeal Act Of 1999, Part 2: Hearing Before The H. Comm. On The Judiciary, 106th Cong., May 23, 2000 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Unborn Victims Of Violence Act Of 1999: Hearing On S. 1673 Before The S. Comm. On The Judiciary, 106th Cong., Feb. 23, 2000 (Statement Of Peter J. Rubin, Prof. Of Law, Geo. U. L. Center), Peter J. Rubin

Testimony Before Congress

No abstract provided.

Secret Evidence Repeal Act Of 1999, Part 1: Hearing Before The H. Comm. On The Judiciary, 106th Cong., Feb. 10, 2000 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Petition For A Writ Of Certiorari, Cayetano V. Chevron Usa, Inc., No. 00-1198 (U.S. Jan. 24, 2000), J. Peter Byrne

U.S. Supreme Court Briefs

No abstract provided.

Preemption & Human Rights: Local Options After Crosby V. Nftc, Robert Stumberg

Georgetown Law Faculty Publications and Other Works

In June 2000, the Supreme Court held in Crosby v. National Foreign Trade Council (NFTC) that federal sanctions against Burma preempted the Massachusetts Burma law. With its "Burma Law," Massachusetts sought to replicate the anti-Apartheid boycott, one of the most successful human rights campaigns in history. Massachusetts' Burma law authorized state agencies to exercise a strong purchasing preference in favor of companies that do not conduct business in Burma unless the preference would impair essential purchases or result in inadequate competition.

In Crosby, the Court held that Congress preempted the Massachusetts Burma law when it adopted federal sanctions on …

Understanding Mahon In Historical Context, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.

The author argues that at …

Sovereignty By Subtraction: The Multilateral Agreement On Investment, Robert Stumberg

Georgetown Law Faculty Publications and Other Works

The proposed Multilateral Agreement on Investment (MAl) represents a major step in the evolution of "sovereignty," which includes the power of a nation-state to govern without external controls. A panelist at the 1998 Cornell International Law journal Symposium introduced the MAl as an example of "multilateral sovereignty" to achieve commonly held goals of global economic integration. This perspective posits that the MAl is an exercise in sovereignty by subtraction, aiming to limit governing power rather than promote its joint exercise.

Its critics call the MAl a "slow motion coup d'etat," a "bill of rights for investors," a threat to sovereignty, …

Jam For Justice Holmes: Reassessing The Significance Of Mahon, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

When courts and commentators discuss Pennsylvania Coal Co. v. Mahon, they use the same word with remarkable regularity: famous. Mahon has achieved this fame in part because it was the occasion for conflict between judicial giants, and because the result seems ironic. Justice Oliver Wendell Holmes, Jr.--the great Lochner dissenter and a jurist generally considered a champion of judicial deference to legislatures in the sphere of economic decision-making--wrote the opinion striking down a Pennsylvania statute barring coal mining that could cause the surface to cave-in. Sharply dissenting from Holmes's opinion was his consistent ally on the Court, Justice Louis …

Proposition 209, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

I have a proposition for you. It's called Proposition 209. All you have to do is stop discriminating in favor of women and racial minorities, and your perpetual problems of race and gender discrimination will finally disappear. If this Proposition sounds too good to be true ... well, you know how the saying goes. In law, as in life, the seductiveness of a proposition owes as much to its disregard of established norms as to its underlying content. Eliminate the affront to social convention, and a proposition promises about as much excitement as a routine liaison with one's spouse. But …

Necessary And Proper, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this article, the author maintains that, if the courts are to hold Congress to the exercise of its enumerated powers, then they must come to grips with the congressional power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." While the Necessary and Proper Clause has long been used to greatly expand congressional power, he argues that, to the contrary, it provides a two-part standard against which all national …

Toward A "Due Foundation" For The Separation Of Powers: The Federalist Papers As Political Narrative, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

During the past quarter century, lawyers have become strangely comfortable with descriptions of our government's structure that would, to an untutored ear, speak contradiction. We are quite satisfied to say that governmental powers are separate and shared, departments distinct and overlapping, functions autonomous and interdependent. We have settled into these contradictions as we would a roomy chair: talking this way is no longer controversial but taken for granted, uttered with a knowing wink, perceived as the starting point of sophisticated analysis. A not "entirely separate," but "entirely free," set of departments is the only way we can think about the …

The Four Doctrines Of Self-Executing Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

A distinction has become entrenched in United States law between treaties that are "self-executing" and those that are not. The precise nature of this distinction--indeed, its very existence--is a matter of some controversy and much confusion. More than one lower federal court has pronounced the distinction to be the "most confounding" in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson's observation that " [t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion" surrounding it. The …

The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used …

Working Papers As Federal Records: The Need For New Legislation To Preserve The History Of National Policy, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This article deals with policy records at the "front end" of their lives; that is, preserving them from destruction by federal agencies in the decades immediately after their creation. It does not deal with the destruction of archived documents by Archives officials themselves. It discusses only in passing the related question of how long a policy record should be sealed off from public inspection; the literature includes a variety of opinions on that subject. The author is content to leave to others the problem of just where to draw the balance between making historical documentation available soon enough so that …

Bad Trip: Drug Prohibition And The Weakness Of Public Policy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The case against prohibition is overwhelming precisely because so many different types of considerations all point to a single solution: the legalization of illicit drugs. The complexity of the case against prohibition means, however, that it cannot be presented adequately by a few anecdotes or even a lengthy essay. Nothing less than a book-length treatment will suffice and, fortunately, that book has been published. America's Longest War is an ambitious effort to evaluate the effectiveness of the policy of prohibition. It accomplishes this by marshalling the empirical research that has been done on both drugs and drug prohibition and then …

The Intersection Of Natural Rights And Positive Constitutional Law, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief essay, the author describes what he sees to be the unavoidable connection between natural law--or, more accurately, natural rights--and the positive law that is the subject of constitutional adjudication. This connection would exist whether or not there is a conceptual distinction between natural and positive law of the sort that Professor Fred Schauer maintains in his article, Constitutional Positivism. Because of this connection, judges in a world in which legal positivism is "true" should act, on occasion, as though the natural rights approach is' correct. And if this is true then, the author maintains, the natural …

Sex, Reason, And A Taste For The Absurd, Robin West

Georgetown Law Faculty Publications and Other Works

Like much of Richard Posner's best work, Sex and Reason does many things, and for that reason will no doubt attract a large and diverse readership. This heavily footnoted, exhaustively researched, and imminently accessible book is a welcome introduction to the interdisciplinary study of sex. For the lay reader it presents an arresting set of speculations about human sexuality, drawn from the author's evident familiarity with a sizeable library of studies representing at least half a dozen scientific and social scientific disciplines, assembled in a readable and lively way. Of more interest, perhaps, to academicians and social scientists familiar with …

Prospective Overruling And The Revival Of ‘Unconstitutional' Statutes, William Michael Treanor, Gene B. Sperling

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Planned Parenthood v. Casey reshaped the law of abortion in this country. The Court overturned two of its previous decisions invalidating state restrictions on abortions, Thornburgh v. American College of Obstetricians and Gynecologists and Akron v. Akron Center for Reproductive Health, and it abandoned the trimester analytic framework established in Roe v. Wade. At the time Casey was handed down, twenty states had restrictive abortion statutes on the books that were in conflict with Akron or Thornburgh and which were unenforced. In six of these states, courts had held the statutes unconstitutional. Almost …

The Aspirational Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Firmly embedded in every theory of judicial decisionmaking lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply embedded in every theory of government is a theory of human nature. Although these assumptions about human nature generally remain latent within the larger theory, because they provide the underpinnings for our ideas about the way government is supposed to work, they drive our notions about judicial decisionmaking. For example, the theory of government reflected in the United States Constitution reveals what one …

The Future Of District Of Columbia Home Rule, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This article begins by briefly reviewing the recent historical development of home rule. Next, it explores the ways in which the people of the District might obtain a greater voice in the national legislature and more genuine home rule. Finally, it suggests that the District's citizens may have to make a political choice, which they have until now avoided, between seeking gradual improvements in their political rights and pressing strongly for statehood.