Georgetown Law Journal最新文献

{"title":"The Public Interest Class Action","authors":"D. Marcus","doi":"10.2139/SSRN.2565988","DOIUrl":"https://doi.org/10.2139/SSRN.2565988","url":null,"abstract":"Public interest lawyers often bring large-scale cases against government defendants for injunctive relief as class actions. Until recently, their class certification motions routinely succeeded, enabling plaintiffs to obtain sweeping remedies that have required fundamental reforms to government policies and practices. In recent years, however, the law regulating the public interest class action has changed dramatically, with recurring doctrinal problems splitting the federal courts. Should a nascent trend against class certification continue, class action doctrine will soon present a formidable obstacle – possibly a barrier – to the successful prosecution of a sort of litigation that has produced innumerable changes to prisons, foster care systems, and other government agencies and services over the last fifty years. Any path out of the present confusion must address a basic but neglected question. Why do large-scale public interest cases so regularly proceed as class actions? The answer involves an under-appreciated interaction between the law of class actions and other doctrines devised to limit standing and the scope of remedies. Class action procedure enables public interest plaintiffs to vindicate policies in the substantive law consistent with broad, systemic remedies without asking courts to usurp power from other branches or adjudicate ineptly Without class certification, these policies would lie dormant, as the other doctrines would unnecessarily derail litigation. This “counterweight” function can generate responses to the doctrinal problems that courts have struggled to answer in this new era for the public interest class action. If class action procedure evolves in a manner consistent with its function, large-scale public interest litigation will remain a viable means for the achievement of structural reform.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"48 1","pages":"777-833"},"PeriodicalIF":2.0,"publicationDate":"2015-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76636438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Raising the Stakes in Patent Cases","authors":"A. Malani, J. Masur","doi":"10.2139/SSRN.2216948","DOIUrl":"https://doi.org/10.2139/SSRN.2216948","url":null,"abstract":"Defendants in patent infringement cases are permitted to defend on the grounds that the infringed upon patent is invalid. This defense, which we call a patent challenge, is intended to correct for the fact that the Patent and Trademark Office may grant patents that are invalid, and invalid patents impose significant economic costs without the offsetting benefit of spurring innovation. Patent challenges are intended to weed out these invalid patents. Unfortunately, patent challenges have flaws. Defendants sometimes succeed in convincing a court to invalidate a truly valid patent. In these cases, challenges reduce the returns to valid patents and discourage valuable innovation. Other times, a court upholds an invalid patent against a challenge. This imposes a tax on genuine innovation and shifts resources toward rent-seeking and away from productive activities. In this paper we ask whether it is possible to reduce the costs patent challenges impose on valid patents without hampering the utility of patent challenges in weeding out invalid patents. If patent trials are inaccurate, it would appear that the most sensible course of action would be to reduce the stakes of those trials. Counter-intuitively, we propose raising the stakes of patent litigation by providing enhanced rewards to victorious patent holders and imposing enhanced penalties on owners of patents that are invalidated at trial. Such measures would actually create greater separation between holders of valid and invalid patents, incentivizing innovation by the former while dissuading the latter from litigating or even asserting their socially worthless property rights.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"41 1","pages":"637"},"PeriodicalIF":2.0,"publicationDate":"2013-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75274782","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Upside-Down Judicial Review","authors":"C. Lain","doi":"10.2139/SSRN.1984060","DOIUrl":"https://doi.org/10.2139/SSRN.1984060","url":null,"abstract":"The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But sometimes just the opposite is true. Sometimes it is the democratically elected branches that are out of sync with majority will, and the Supreme Court that bridges the gap-turning the conventional understanding of the Court’s function on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. The result is a distinctly majoritarian, upside-down understanding of judicial review. This Article illustrates, explains, and explores the contours of this phenomenon, using three classic cases of the countermajoritarian difficulty — Brown v. Board of Education, Furman v. Georgia, and Roe v. Wade — to anchor the discussion. Democracy never looked so undemocratic, nor (in an upside-down way) has it ever worked so well.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"7 1","pages":"113"},"PeriodicalIF":2.0,"publicationDate":"2012-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78924475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"‘Let ‘em Play’: A Study in the Jurisprudence of Sports","authors":"Mitchell N. Berman","doi":"10.2139/SSRN.1667140","DOIUrl":"https://doi.org/10.2139/SSRN.1667140","url":null,"abstract":"Serena Williams was eliminated in the semifinals of last year’s U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium’s Kim Clijsters. Williams’s explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams’s outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport’s rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law’s “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"99 1","pages":"1325-1369"},"PeriodicalIF":2.0,"publicationDate":"2010-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87706498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment","authors":"Kurt T. Lash","doi":"10.2139/SSRN.1561183","DOIUrl":"https://doi.org/10.2139/SSRN.1561183","url":null,"abstract":"Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.This article, the second in an extended investigation of the origins of the Privileges or Immunities Clause, presents historical evidence which strongly suggests that none of these assumptions are correct. Although John Bingham’s first draft of the Fourteenth Amendment used the language of Article IV, mid-way through the Reconstruction debates Bingham realized he had made a mistake. Withdrawing his initial proposal, Bingham abandoned the language of Article IV and drafted a second version of the Amendment. This second version protected the “privileges or immunities of citizens of the United States ” - a phrase which mirrored antebellum language regarding the rights of national citizenship. Bingham insisted that his second and final version of Section One did not refer to the common law state-conferred rights of Corfield and Article IV, but instead nationalized a different and limited set of constitutionally recognized privileges and immunities, in particular the first eight amendments to the Constitution. Understanding the difference between Bingham’s first and second drafts not only explains what otherwise appear to be inconsistencies in Bingham’s speeches, it also calls into question contemporary efforts to read the Privileges or Immunities Clause as a source of un-enumerated natural rights. Like other moderates in the Thirty-Ninth Congress, Bingham wished to expand the protection of individual rights in the states, but not at the expense of the retained right of the people in the states to regulate the content of most civil rights, subject only to the requirements of due process and equal protection.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"7 1 1","pages":"329-433"},"PeriodicalIF":2.0,"publicationDate":"2010-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82559008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Praise of Realism (and Against 'Nonsense' Jurisprudence)","authors":"B. Leiter","doi":"10.2139/SSRN.1113461","DOIUrl":"https://doi.org/10.2139/SSRN.1113461","url":null,"abstract":"(This is a significantly revised version of a paper first posted in March 2008.) Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a \"Chicago School of anti-theoretical, no-nonsense jurisprudence.\" Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of pro-theoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. But while there is a real dispute between Dworkin and Posner, it is not one illuminated by the contrast between theory and practice. It is, rather a dispute about the kind of theory that is relevant and illuminating when it comes to law and adjudication. And the fault line marked by this dispute is profound indeed, one that extends far beyond Dworkin and Posner and has a venerable and ancient history that includes Thucydides and Plato, Nietzsche and Kant, Marx and Hegel, up to Geuss and Rawls in the present. I shall describe it, instead, as a dispute between Moralists and Realists, between those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are. The essay endeavors to show that our contemporaries, Ronald Dworkin and Richard Posner, are reenacting a version of the dispute between the paradigmatic philosophical moralist Plato and the paradigmatic historical realist Thucydides. The paper concludes by connecting the Posner-Dworkin dispute with recent \"realist\" critiques of Rawlsian political philosophy, trying to clarify the grounds for skepticism about the practical relevance of such theorizing.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"12 1","pages":"865"},"PeriodicalIF":2.0,"publicationDate":"2010-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81859874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Witchcraft and Statecraft: Liberal Democracy in Africa","authors":"N. Tebbe","doi":"10.31228/osf.io/synmx","DOIUrl":"https://doi.org/10.31228/osf.io/synmx","url":null,"abstract":"This Article addresses the prospects of liberal democracy in non-Western societies. It focuses on South Africa, one of the newest and most admired liberal democracies, and in particular on its efforts to recognize indigenous African traditions surrounding witchcraft and related occult practices. In 2004, Parliament passed a law that purports to regulate certain occult practitioners called traditional healers. Today, lawmakers are under pressure to go further and criminalize the practice of witchcraft itself. This Article presses two arguments. First, it contends that the 2004 statute is compatible with liberal principles of equal citizenship and the rule of law. Second, it warns against outlawing witchcraft as such. Subjecting suspected sorcerers to criminal punishment based on governmental determinations of guilt that many will perceive to be unprincipled would work too much damage to individual autonomy and national unity, among other values. These arguments are designed to contribute to a wider discussion about the capacity of liberalism to respond to the global resurgence of religious traditionalism, especially in countries where traditionalists may comprise a large majority of the citizenry.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"419 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2007-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76628251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Optimal War and Jus Ad Bellum","authors":"E. Posner, A. Sykes","doi":"10.2139/SSRN.546104","DOIUrl":"https://doi.org/10.2139/SSRN.546104","url":null,"abstract":"The laws of war forbid states to use force against each other except in self-defense or with the authorization of the United Nations Security Council. Self-defense is usually understood to mean self-defense against an imminent threat. We model the decision of states to use force against \"rogue\" states, and argue that under certain conditions it may be proper to expand the self-defense exception to preemptive self-defense. We also consider related issues such as humanitarian intervention, collective security, and the role of the Security Council.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"3 1","pages":"993"},"PeriodicalIF":2.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83643792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation","authors":"L. Solan","doi":"10.2139/SSRN.515022","DOIUrl":"https://doi.org/10.2139/SSRN.515022","url":null,"abstract":"For decades, the use of legislative intent in statutory interpretation has been attacked both by conservative and progressive theorists. The more conservative textualists claim that judges should focus not on what members of the legislature had in mind, but rather on what the statute says. Theorists with more liberal political orientations claim that concern about a legislature's intent can inhibit a court from allowing the meaning of a statute to change with the times. All critics argue that the idea of a large group of people having a single intent is incoherent. Using advances in linguistics, philosophy and the psychology of language, this article defends the use of legislative intent against both camps. It argues that we routinely perceive groups that make decisions deliberately as entities with a single intent, and that we routinely draw inferences about the minds of others in understanding language and conduct. These ways of understanding the world are so firmly embedded in our psychology that we cannot dispense with them even if we try. The article further argues that we cannot avoid concerning ourselves with the intent of a speaker in understanding language, and that arguments to the contrary are based on an illusion about how the human language faculty works. In fact, on many occasions courts use the intent of the legislature to justify approaches to statutory interpretation that are presented as alternatives to legislative intent. Finally, legislative intent is compared to other values that courts may consider important, and a broader perspective on the interpretation of statutes is developed.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"20 1","pages":"427"},"PeriodicalIF":2.0,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75010579","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits?","authors":"G. Charles","doi":"10.2139/SSRN.463280","DOIUrl":"https://doi.org/10.2139/SSRN.463280","url":null,"abstract":"This Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"11 1","pages":"575"},"PeriodicalIF":2.0,"publicationDate":"2003-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82823606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}